In a post truth, alternative factoid world, knowing the certainty of an issue is an increasingly slippery endeavor. For those in the HR profession who deal with discrimination and harassment laws, things have always been a little slippery—especially when we have to explain how the law works in the real world. For instance — many laypeople are surprised to learn that firing a person because they are viewed by an employer as unattractive isn’t necessarily against the law (though in some cases, it is).
This becomes a point of particular concern now that Donald Trump enjoys seemingly unfettered presidential authority thanks in part to a Republican-controlled Congress. Many of us in the HR sector are waiting with bated breath to see what this power will mean for working Americans from coast to coast. Considering President Trump’s multitude of crude statements concerning women, this article focuses on what a Trump Administration means particularly for America’s working women.
Let’s unpack President Trump’s comments regarding women and contrast those to America’s gender discrimination laws.
Donald Trump and Working Women
First, let’s examine the reported case where Trump allegedly wanted to fire “ugly” women. The story first appeared in The Los Angeles Times. Reporters obtained lawsuit documents suggesting that Trump wanted to fire “ugly” female employees at his Palos Verdes, CA golf club. According to a 2008 sworn declaration, a director of catering at the golf club said that Trump would suggest certain hostesses weren’t pretty enough and that they should be “fired and replaced with more attractive women.” Another employee claimed that Mr. Trump doesn’t like fat people and he didn’t want to see obese employees on the premises.
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In a separate matter altogether, one longtime female employee, said that Trump kept a “fat” picture of her in his desk, and would pull it out to tease her whenever she did something he didn’t like. If true, these comments indicate that female employees have faced heavy scrutiny due to their looks by our President. But how does this play into America’s gender discrimination laws?
The Present Status of Gender Discrimination Law in America
At the Federal level, gender discrimination at work is prohibited by Title VII. Each state also has its own laws. California, for example, has a stronger gender discrimination law than Title VII. These laws, along with each states’ employment laws, protect women and men from being discriminated against or fired due to their gender.
Do our gender discrimination laws prohibit employers from firing “ugly” women?
To answer this question, you must first understand that certain types of discrimination are allowed. Let’s say that you hate the color yellow. In most at-will states, you can fire an employee simply because she wore yellow. Similarly, an employer is generally allowed to fire an employee simply because he or she doesn’t like the employee’s appearance. But that is not the end of the story! You are not allowed to fire someone if you are basing the decision on that employee’s membership in a protected class (i.e. gender, sex, race, religion, etc).
What does this mean? In 2003, a CA Court of Appeal decided Yanowitz v. L’OREAL. The essential case facts are that the Plaintiff, a high performing regional sales manager, was told by a male executive to fire a female subordinate because she was “not good looking enough.” He instructed her to fire the female but she refused.
The Court held that this behavior met the definition of sex discrimination if no similar standard was applied to men. So, comparative analysis is the key. Therefore, Trump’s alleged instruction to hire attractive hostess’ and to fire ugly ones would be a violation of law if no such instruction were given for male employees.
Do our gender discrimination laws prohibit firing “fat” women?
Employee weight is not a protected characteristic. On the surface, it is perfectly legal to terminate an employee because he or she is obese. However, the law is never that simple. Similar to the “appearance” cases, the key inquiry is how the employer treats similarly situated men.
When Trump teased his female employee with a “fat photo,” did that constitute gender discrimination or harassment? In Franks v. United Airlines, an airline’s policy imposed strict weight restrictions on female flight attendants, but no similar restriction on male employees. The Court held that this violated Title VII.
So yes, using the same analysis, it would likely be gender harassment for Mr. Trump to fat-shame a female employee if he didn’t fat-shame men as well. However, if Trump could show that he teased men for their weight as well, then he would probably get off the hook. While that may seem ridiculous, the fact of the matter is that the law does not prevent employers from being jerks, it just prevents them from discriminating against people due to specific characteristics.
Will President Trump Change the Gender Discrimination Laws?
It is highly unlikely that Trump would be able to convince Congress to substantially alter Title VII’s gender discrimination laws. Even if he could, he could not change the laws of individual states. So, if your state is similar to CA, which has its own anti-discrimination law, it would be unlikely that any changes to Title VII would affect working women within the state.
But what is more likely to have an effect is that President Trump will appoint federal judges that are conservative. Generally, this means that it may be harder to prevail in a gender discrimination lawsuit if you are in front of one of his appointees.
Beyond the law and judges, it is far more likely that President Trump will have a heavy influence on working women from a cultural point of view. Since the American public elected him to run the most powerful nation in the world, his discourse, opinions, and behavior will be modeled by many. If Trump attempts to run his administration like he has his private businesses, the culture of beauty may become more pervasive throughout America’s workplaces.
This piece was co-authored by Branigan Robertson and Tamara Freeze.
Tamara Freeze is an employment lawyer in California. She represents women in leave of absence and gender disputes with employers. She has represented female workers in FMLA, disability leave, discrimination cases. Visit her website at leavelawyer.com.
Branigan Robertson is an employment attorney in Irvine, California. He exclusively represents terminated employees in lawsuits against corporations and focuses his practice on whistleblower and wrongful termination cases. Visit his website for more information.