In Wisconsin, some local ordinances, like City of Madison Ordinance 39.03, prohibit employers from discriminating on the basis of physical appearance. In those jurisdictions, Wisconsin employers need to be careful what they say in job announcements or during the hiring process regarding an §applicant’s physical appearance to avoid a potential discrimination charge.

But what about outside the jurisdictions of these municipalities? Are there other laws that permit employees to sue Wisconsin employers for allegedly discriminating on the basis of physical appearance? Not per se. Nothing under Wisconsin state law or federal law expressly makes physical appearance a protected classification. That does not mean, however, that employers are free to “discriminate” on the basis of physical appearance without a risk of being sued. Basing employment decisions on a person’s physical appearance can give rise to a claim that physical appearance “discrimination” is simply a pretext for denying employment based on age or based on gender stereotyping about how men and women should look.

The threat of such a claim is not just something made up by lawyers to scare their clients. The federal Equal Employment Opportunities Commission (EEOC) recently started an investigation of a coffee shop chain regarding the company’s alleged practice of hiring only attractive women. The EEOC did so even though no applicant or employee had filed a complaint. The agency’s rationale is that individuals may not even know that they are being discriminated against on the basis of age or some other protected classification, apparently under the guise of hiring only “beautiful people.” The EEOC’s investigation makes it all the more important for employers to follow best practices regarding hiring and employee retention and rewards, making such decisions on individual work-related qualifications.

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