Orange County Employment Lawyers Blog
Employers using social media platforms to advertise jobs and recruit potential employees is nothing new. Some did run into trouble tailoring their job ads to certain audiences (by age, gender, location, etc.), but most of those fields have been eliminated. Now, some employers are shifting their recruiting efforts to TikTok, a wildly popular video-sharing social networking service. 
Last month, the company even launched its own pilot program with its own website that allowed people to apply for jobs through the app, which offered resources, tips and how to make a good pitch. Meanwhile, many employers, facing significant worker shortages, are using the app to reach out to potential workers.
By virtue of the fact that it is a video-based provider, it does leave prospective employees vulnerable to looks-based discrimination, sometimes referred to as appearance discrimination or lookism.
Of course, one’s appearance is not an indication of their work ethic or character. That said, society often puts a significant value on one’s appearance. Certainly, that’s not fair, but is it illegal? Appearance discrimination isn’t a category that is technically recognized as being protected by employment laws in California, but it could be actionable when the employer’s conduct amounts to gender discrimination, age discrimination, racial discrimination or disability discrimination.
Recent examples of appearance discrimination include:
- The founder of Barstool Sports on a radio program told a 20-year-old female employee in the company’s video division that she wouldn’t be good-looking enough to work on camera in 5 years.
- A boutique store boss in Michigan wrote is colleagues (and accidentally, the job candidate herself) to say they should be hesitant to hire her because she was “not that cute.”
- A prospective employee was given an initial job offer after attending a job fair, but later, when the 420-lb man went to an orientation, he was asked about measurements for a uniform. He was ultimately never called back in to work, while other recruits were. He sued alleging disability discrimination on the grounds that being morbidly obese is a disability and he was not hired based on the employer’s perception of his condition.
One’s appearance can cover a wide range of characteristics, from weight, height, age, hairstyle, eye color, fashion choices, etc. Federal anti-discrimination laws don’t list physical appearance as a protected class, except for skin color. Protected classes include race, color, religion, sex (and in California, sexuality and sexual identity), national origin, pregnancy, age, disability, citizenship, family status, veteran status and genetic information.
That said, our Los Angeles employment lawyers can explain that potential liability for appearance discrimination can arise when a physical trait being judged is a mutable or immutable characteristic of a protected class. For example, a Black prospective employee might be discriminated against for having certain afro-centric hairstyles. Hair-based discrimination can also occur with those of certain religious or cultural connections (Native Americans, Rastafarians, Sikhs, etc.). We might also see LGBTQ discrimination stemming from “appearance discrimination” if one is denied opportunity based on their lack of conformity to certain norms of gender identity.
Another example would be if female employees are judged by the filter of their attractiveness while male employees are not.
In generally advised employer/recruiting practice, employers are generally advised to scrub resumes of protected information that might be used to discriminate (or “anonymize” them) so that all prospective employees have a fair chance and the company isn’t vulnerable to such accusations. But TikTok, with its platform that is entirely visible, puts the appearance of prospective employees front-and-center.
Some human resources experts say companies might be able to avoid this problem is to have a third-party organization provide them with a sanitized version of the content of applicant’s video and their credentials.
Another way such practices could be discriminatory is that older workers (those over 40) are likely to be disadvantaged because they are far less likely to use the app. This would be especially an issue for an employer who only used this app and no other recruiting tools.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
Additional Resources:
New Research Reveals Why ‘Appearance Discrimination’ Is Making Workplaces Even More Toxic, More than 1 in 4 employees have experienced discrimination due to their looks. Most often, it happened to women, Oct. 2019, By Marcel Schwantes, Inc.
With TikTok Resumes, the social media app is betting on the future of video resumes, July 26, 2021, By Jennifer Liu, CNBC