Can my client ask me to send pictures of employees for her review?
October 21, 2008 7:05 AM   Subscribe

How can you hire people based on looks? Isn't that illegal?

More information - I'm working for a client who insists on seeing pictures of the promotional reps that my company hires to represent her business. She's a marketing manager for a large technology firm and we are doing a campus tour to promote one of her devices shortly. She's requests 'rep cards' including photos and resumes of the promo reps to ensure that they aren't in her words 'beer girls'.

I've never had this request from a client before. Obviously you hire a certain look for projects like beer or sports promotions, but I thought we were specifically prohibited from asking potential hires for photos. This isn't a casting. They have to stand around and hand out cards.

Oh I'm in Canada - specifically Ontario.

Am I right? Is this an offside request? The client will meet all the reps in the training session but she's concerned about regions where she can't attend the sessions in person.
posted by urbanette to Law & Government (30 answers total) 2 users marked this as a favorite
In the US, I believe you can ask for pictures, but it's a terrible idea. Someone who you reject for a job could claim that it was because of the color of their skin.
posted by meta_eli at 7:13 AM on October 21, 2008

In the US--and I assume something similar obtains in Canada and other common law jurisdictions--while it is generally illegal to base hiring decisions based solely on appearance, there are two important things to remember.

- First, where appearance is arguably "part of the job," employers have some leeway here. So for jobs like modeling, "booth babes," etc., you can generally get away with hiring people that look/don't look a certain way. As it sounds like your company is supplying labor for something along those lines, she can probably do this.

- But second, and most importantly, while you are generally prohibited from discriminating based on appearance, there are innumerable ways of doing so in ways which will escape liability. Employers are allowed to ask for photos, especially in cases where they are hiring without in-person interviews. But more than that, because hiring is largely discretionary, one can easily discriminate based on looks while pretending to base one's decisions on other, more legitimate categories. How do you think Hooters or strip clubs get away with it?

There are even ways in which "discriminating" based on appearance is completely expected. If two people show up for the same interview and one is wearing a suit while the other is in jeans and a sweatshirt, even if their resumes are otherwise identical, it shouldn't be too much of a stretch to see why the former will get the job before the latter will. Clothes do, in some sense, make the man, as it were.

In short, no, asking for pictures isn't illegal, and no, there really isn't all that much you can do if you think your contact here is discriminating based on appearance. It may be distasteful, but unless an employer is dramatically stupid about it, this sort of thing generally falls well within the area where employers are free to hire and fire at will.
posted by valkyryn at 7:22 AM on October 21, 2008 [1 favorite]

I don't know the exact legal position in the U.S., but enclosing a picture is pretty much guaranteed to get your application tossed. It opens the door to all sorts of potential discrimination lawsuits, so H.R. departments generally don't want to go anywhere near it.

In most parts of Europe, at least, it's quite common for a c.v. to be accompanied with a photo (as well as other taboo-in-the-U.S. stuff like family info). Not sure where Canada stands.
posted by mkultra at 7:22 AM on October 21, 2008

She just wants someone professional and clean. If it is a marketing job, obviously you have to look decent. If you are representing the business, you need to look sharp. I have no idea why anyone would not want to look their best at work. How is an interview less similar to a casting? You have to fit in with the culture, right.

No I do not think it has to do with race. Even graduate schools ask for a photo to make sure you are not that "beer girl". Well they separate the wheat from the chaff with more important criteria, really.
posted by johannahdeschanel at 7:24 AM on October 21, 2008

After reading valkyryn's response, I think I misundertstood the post at first- are these people basically spokesmodels at events for this product? Then yeah, that stuff happens all the time. That's life in the entertainment industry.
posted by mkultra at 7:26 AM on October 21, 2008

Are you hiring models (for the event)? or are the promo reps employees who will happen to work the campus tour and promote the product? If contracted models, then I don't see how or why it would be illegal. They are getting hired for their looks after all. But if they are employees then I'd say that if it's not illegal then it's in bad taste (even if a legitimate concern).

It is your client in the end, so the question of keeping the client happy may have to be considered also.
posted by eatcake at 7:35 AM on October 21, 2008

Best answer: Lawyer up. If you are in this business you should have a lawyer whom you can call with this sort of question. Typically it is not discrimination unless it falls into a protected category such as age, race, religion, sex, etc. If for instance they only want young people that is potentially a problem. In any event to properly protect yourself you want to get in touch with your lawyer who will also be familiar with any state laws.
posted by caddis at 7:35 AM on October 21, 2008

Even graduate schools ask for a photo

Is this true?
posted by washburn at 7:53 AM on October 21, 2008

Even graduate schools ask for a photo

Is this true?

Also a little skeptical on this one. Head shot? Full body?
posted by fixedgear at 8:00 AM on October 21, 2008

don't know the exact legal position in the U.S., but enclosing a picture is pretty much guaranteed to get your application tossed.

And that's constant problem for immigrants from some parts of Latin America, where a photo attached to a resume is standard and expected for any position. One has resume photos taken the way other people have passport photos prepared. I see unsolicited photos attached to resumes with Spanish names all the time, and I expect it's just that upbringing/habit at work.

But in NorAm, as others have said, it's expected and normal only for models, actors, spokespeople and other "public faces" to provide photos, but not applicants for other types of employment.

When you're explicitly hiring for a "look", though, you're certainly allowed to see photos... but then again the people applying for such positions usually have headshots or comp cards already on hand. I can't imagine a model, for example, applying for a gig without supplying one.

The laws against this are to prevent arbitrary discrimination where one's looks can't reasonably have a bearing on the job itself, such as a legal secretary or auto mechanic.
posted by rokusan at 8:01 AM on October 21, 2008

Even graduate schools ask for a photo,

I've never seen this, and moreover googling grad school applications and picture (or photo) doesn't show any support for this idea.
posted by Solon and Thanks at 8:09 AM on October 21, 2008

My graduate school application required a photo. But it was in the UK.
posted by grouse at 8:09 AM on October 21, 2008

I used to work in law school admissions and we were terribly risk averse when it came to applications, the last thing we would want is a picture. I shudder to think what grad program is asking for pics.
posted by Ponderance at 8:10 AM on October 21, 2008

With some exceptions, workers in Canada are protected from discrimination based on:
• national or ethnic origin, race, ancestry, place
of origin, colour;
• disability (physical and/or mental);
• religion, creed, political belief, association;
• sex, sexual orientation, pregnancy;
• age (with exceptions for minors and seniors
in some cases);
• marital or family status.

posted by ODiV at 8:36 AM on October 21, 2008

Out of two grad schools I dealt with (in Canada), one did want a photo -- but they only asked for it well after accepting me into the program, and "only for our records" (whatever that means).

As for the actual question, this will be a matter of Ontario employment law. You absolutely should speak to a lawyer (and as someone mentioned above, being in your line of business you should maintain a relationship with an employment law specialist).
posted by onshi at 8:43 AM on October 21, 2008

IANAL, etc., but having re-read your post, there's also the question of who is the employer in your situation -- on my reading, you're the employer ("promotional reps that my company hires to represent her business") and the marketing manager, as your customer/client, is deciding which of your employees are suitable for her purposes.

Aside from the law, though, it's obvious from your post that you feel basing this decision on photographs of the reps is, as you put it, "offside". Is there room in your relationship with the marketing manager for you to say so?
posted by onshi at 8:53 AM on October 21, 2008

Aside to clarify prior comments: In the US it is not unlawful to hire someone "based on looks" but hiring someone based on looks often slips over into race, national origin, and disability discrimination (which is unlawful). So, see, giant lawsuit (and horrible publicity) against retailer Abercrombie and Fitch.
posted by ClaudiaCenter at 9:05 AM on October 21, 2008

it is generally illegal to base hiring decisions based solely on appearance

you are generally prohibited from discriminating based on appearance

Valkyryn, where did you get this from? Suggest you give ... ANY ... documentation you may have about these supposed "laws."

The reason your post waffles all over the place is that it's based on your own made-up ideas about laws.
posted by JimN2TAW at 9:34 AM on October 21, 2008

I have to say, it sounds like your company does 'sampling' - having people who fit the 'right profile' for a handout or product demonstration is pretty standard in my experience when I worked in the field for a while. It isn't necessarily about attractiveness, but perceived personality. We asked for recent 'model cards' or photos pretty regularly. You don't want males handing out feminine products or someone with outrageous looks / personal style sampling a 'conservative' product.
posted by eatdonuts at 9:41 AM on October 21, 2008 [1 favorite]

Even graduate schools ask for a photo

Is this true?

Most places want a photo to put on your university library card. Some places will accept you then chase you for a photo later, other places prefer to gather all the data in one go.

However, it's pretty unlikely a graduate school would use that photo to "to make sure you are not that 'beer girl'" because what do they care what you look like? Besides, they would find what you looked like at interview anyway.
posted by Mike1024 at 9:56 AM on October 21, 2008

Actually, JimN, Valkyryn is technically correct. EEOC guidelines state "refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers" violates Title VII unless appearance is a bona fide occupational qualification (BFOQ) for the job. For example--if you're running a booth at E3 and you need a booth babe to look like a certain character, then hiring that girl based on looks is fine, because the girl needs to look like the particular character you want to represent.

However, if you're hiring someone to sit behind a desk, and try to hire them based on looks, you're going to have some trouble, unless you can prove that being pretty is a BFOQ for sitting at a desk.

It's not inherently illegal, but there have been cases that have set precedents for it to be, based on their interpretations of Title VII and EEOC stuff. It can, however, be illegal on a state level. Apparently, the District of Columbia has a law that specifically prohibits hiring based on looks.

Sec. 1625.4(a) of the ADEA regs says: "When help wanted notices or advertisements contain terms and phrases such as age 25 to 35, young, college student, recent college graduate, boy, girl, or others of a similar nature, such a term or phrase deters the employment of older persons and is a violation of the Act, unless one of the exceptions applies."

Bottom line, urbanette, it looks like if your client can't prove that looks are a BFOQ, then she has no say over what your reps look like.
posted by Verdandi at 10:03 AM on October 21, 2008

However, it's pretty unlikely a graduate school would use that photo to "to make sure you are not that 'beer girl'" because what do they care what you look like?

I always suspected that Cambridge wanted my photo to enable class discrimination. They don't routinely do interviews for graduate students. They asked me to mail in another photo later for my ID card.
posted by grouse at 10:04 AM on October 21, 2008

Verdandi: although there absolutely are related concepts in her jurisdiction, the OP is asking about the law (and will need advice from a lawyer based on both case and statute law) in Ontario, Canada and not that of the United States.
posted by onshi at 10:24 AM on October 21, 2008

Not sure about graduate schools, but in the US it is normal to send a passport picture when applying for medical school. The majority of schools ask for one.
posted by Brennus at 10:31 AM on October 21, 2008

Like it or not, it's not illegal for a business to project a certain image. And from your situation, it looks like it works both ways, so it's not that big a deal.
posted by Zambrano at 10:48 AM on October 21, 2008

Best answer: If I were you, I'd give the Ontario Ministry of Labour an anonymous call and ask them these questions. I don't have the number offhand but you can go through 1-800-O-CANADA to get it.

I used to manage an office in Canada that hired people to work for charity fundraising on the street, in malls and for events. We NEVER hired based on looks and I don't think we would have gotten away with it had we wanted to either. Instead, clients were guaranteed that we would have standards with regards to professional attire, no face or hand tattoos, that sort of thing. People can always mystery shop if they want to make sure that no one representing them looks like shit.

I also had friends in Canada that managed promo teams doing work for cell phone companies and the like, and they also did not hire based on looks.

I think if you are going to request photos you'd need to prove to the government that the job is essentially modelling. If all you want to do is hire based on looks, then as others have mentioned, it's a case of interviewing everyone, picking the ones who look the best and just not hiring the ones that you don't like the looks of, and then taking a photo on their first day and sending that along.
posted by vodkaboots at 12:05 PM on October 21, 2008

I'm working for a client who insists on seeing pictures of the promotional reps that my company hires to represent her business

I've never known any promotional campaign (UK, US, Canada) that doesn't hire with at least a significant emphasis on looks - whether that be 'doesn't look hideous/scary/untrustworthy' to 'hot chicks sell stuff to guys that like cars' type stereotypes. I'm surprised that, unless this is a departure from your usual business or you are new there, that this is in any way a shock to you.
posted by Brockles at 1:23 PM on October 21, 2008

Agree that hiring based on appearance is often unacceptable, and often not the best strategy. If one wanted to require "professional appearance" as a requirement during work hours, that would be totally okay.

But, if a specific appearance is required in order to successfully perform the job (BFOQ), and if you're making hiring decisions based on that, it might be deemed acceptable. It does sound as though your client is likely discriminating based on age and other protected classes. I'm not sure what "beer girls" are, but in the US employers may not (legally) penalize an employee for what they do outside of work hours.

It sounds as though you're not comfortable hiring based on appearance. And I applaud your ethics, personally. But, not everyone is so ethical, so be aware that the client may just take their business to someone without such qualms.

Studies here, and here have shown that physicial attractiveness impacts hiring decisions. But here is a contradictory study. And here is an article about the issue, with one lawyer saying (un)attractiveness is not a protected class, therefore discrimination is okay -- as long as the attractiveness filter doesn't inadvertantly discriminate against protected classes, which would often be the case.
posted by quinoa at 2:58 PM on October 21, 2008 [1 favorite]

Re: Even graduate schools ask for a photo. Is this true?

Columbia was the first to require photographs from applicants.

At Harvard, Jewish enrollment reached 6 percent by 1909 and soared to 22 percent by 1922. At Columbia University, more convenient because of its New York location, Jewish enrollment climbed to 40 percent of the student body and at Hunter College, it was 80 percent.

This was the "Jewish problem" facing Lowell at Harvard and his colleagues at other Ivy League schools. The flood of Jews was displacing old-line Gentile Americans. And, it was all happening in the emerging era of eugenics, when tests, such as those administered earlier at Ellis Island and later on World War I Army recruits, were believed to have clearly established that people of Nordic, Alpine, and similar Western and Northern European backgrounds were intellectually superior to blacks, Jews, "Mediterraneans," and others of Southern and Eastern European origin. In the language of the times, admissions personnel, particularly at the Ivy League schools, would "reclaim the right to use social as well as academic criteria" "New application blanks would ask for personal background, including religious affiliation, father's name and place of birth . . . Columbia required a photograph, a personal interview, and three letters of recommendation." Prospective students were evaluated based on "character" and "background." Admissions staff would look favorably on the "boys of old American stock" and Gentile boys of "a desirable social type," while holding back on Jews whose energy and ambition was seen to outstrip their native IQ.

posted by HotPatatta at 4:09 PM on October 21, 2008

Response by poster: Thank you for all of the comments! To clarify: Yes they are simply promo reps. They have to demo the products, answer questions and take contest entries. They are not models and other than having to look professional, (meaning neat and clean really) there aren't any other 'look requirements.'

It's odd, my agency has been doing this for years and we've never been asked for photos before by client unless casting for a role in a specific advert. Of course looks and age factor into decisions for promo reps - but I am particularly uncomfortable with a direct request for photos.

I've asked the client to sit in on the hiring going forward so she can veto people in the meetings - I suspect as a poster mentions above, it's more about a fit and personality for her than a look. And thank you for the suggestions of getting a lawyer involved. It really bothers me that this agency does not use lawyers more often.

Oh ironically, I came to this job recently after working in beer marketing as a client and I NEVER asked my promo agencies for photos of promo reps. Of course it was expected that they would hire good looking young ladies, but I never gave them that direction expressly nor did I ask for photos. And that expectation always made me uncomfortable, which is why I guess I don't work in beer anymore!
posted by urbanette at 9:32 PM on October 21, 2008 [1 favorite]

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