“Non-Discrimination” Run Amok in DC

On a work break, I wandered over to the kitchen by the bulletin board where all the legal notices were required to be. Being the attorney I am, I started to read a lot of familiar things about your right to a minimum wage and to be free from sexual harassment according to Title VII of the Civil Rights Act. And then I saw something interesting under the District of Columbia’s list of protected traits. The usual suspects were there: race, religion, national origin, and (of course, it’s D.C.) sexual orientation. But then one caught my eye…..

“Personal Appearance.”

Wait…… What?

Trying to Navigate One Single Rule

Yes. That is right. According to the District of Columbia Code, it is illegal to:

“fail or refuse to hire. . . any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee”

based on their personal appearance, along with 18 other protected traits.

I mean, I am no expert at anti-discrimination law, but this is the strangest non-discrimination rule I have ever seen or heard of.

But maybe “personal appearance” means that if one “appears” to be of a race or religion or something when they actually are not, they are still protected. This is widely recognized in case law, where if someone fired you because they “think” you are Muslim or something, when you’re actually just a secular Arab, you can still sue using a claim of discrimination based on religion. This prevents someone’s ignorance from being a lawyer’s defense in an otherwise black-and-white case of discrimination. Maybe they just turned that judicial rule into a statute.

Nope.

“Personal appearance” means the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner style of personal grooming, including, but not limited to, hair style and beards. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed standards, when uniformly applied for admittance to a public accommodation, or when uniformly applied to a class of employees for a reasonable business purpose; or when such bodily conditions or characteristics, style or manner of dress or personal grooming presents a danger to the health, welfare or safety of any individual.

Now, though it seems from that definition of “personal appearance” that a business can have a higher standard of “grooming” applied to a customer (“uniformly applied for admittance”) than for a employee (“uniformly applied…for a reasonable business purpose”), that is not the case. Actually, regarding standards for customers, you must prove by the “business necessity” rule, that if not for your policy, it is:

“in each individual case . . . without such exception, such business cannot be conducted; a “business necessity” exception cannot be justified by the facts of increased cost to business, business efficiency, the comparative characteristics of one group as opposed to another.”

But even apart from these technical tests, what the heck does this thing mean anyway? How would this be applied? I mean, in this official DC guidance, personal appearance by employees is subject to “business requirements or standards,” which I suppose means a business can’t discriminate based on personal appearance, except when they make it a policy.

And no, that’s not really a sarcastic joke about it. For instance, in this helpful presentation a law organization put together, they say that you can make a policy on personal appearance for “professionalism” and “office character and image.” Um…. okay. But what if you want a clean shaven face and no knappy dreadlocks as an office policy for professional reasons? Nope. Explicitly denied in the text of the definition. What about really bad, gaudy, and distracting unprofessional makeup in a service job? I don’t know.

And I might also point out that without a hint of irony, the lawyer’s presentation says to make sure your office policy “does not use vague terms open to interpretation.” As for the law and guidance itself? Just shut up and get in line.

So let’s think of some extremely boring examples that could easily arise in an employment context, and you be the judge to decide if this is discrimination based on “Personal Appearance” using the laws to which I have linked above:

  • Situation 1: When talking to an assistant director after an audition for a paid acting part in a play at the Kennedy center: “Well, we really liked your audition, and you are a really talented actor. Unfortunately, the director said you just don’t look the part.”
  • Situation 2: A local television news and media station is has an on-air correspondent. She is told this: “Listen, we’ve had issues with your on-air appearance, and I know you keep asking for someone to do your hair and make-up, but you work remotely and they can’t follow you around like that. There’s no budget for it. Social media is full of more ridicule of your appearance than shares of our news stories. We’re putting you back on your producing role and off camera. We just need this issue to end.”
  • Situation 3: A conversation at a high-end health center: “Yeah, listen, Joe. The thing is, we’ve got an image to uphold here of health and vigor and sexiness. And I know you’re really smart and kind and friendly, and you have some great sales skills for this job. But you’re 5’8″ and 250 lbs, and you just don’t fit the image we’re trying to project here if you want to be the chief recruiter for our high-end members.”

I mean, I don’t even know, and I’m an attorney. Who knows what a regular business owner would do. How do you navigate this?

“Non-Discrimination” is not the same thing as “Freedom”

So at this point, I would like to make a very controversial point.

When legislating on the conduct of private parties, “non-discrimination” is not the same thing as “freedom.” Adding guarantees of “non-discrimination” does not create any more “rights” in a society. It may create more rights for a particular group of people, but it takes away those same rights from another. There is no “net-gain” of freedom when you institute a non-discrimination law.

This is why it is usually not a good idea to create broad laws prohibiting discrimination in the private sector.

Rather than being some bad exception to normal human interaction, “discrimination” is the rule of human interaction. Whom do you hire? What student applicants do you accept? To whom do I sell this house? Which contractor do I pay? These are questions about discrimination: choosing one over another for some reason.

We may believe that the answers to these questions are always: “The one with the best qualifications” and “The ones with the best test scores and GPA” and “The one with the lowest bid” and “The one with the best price.” But life is much more complicated than that.

“This is my nephew, and he’s struggling and really needs a job with that new baby” can be just as compelling a reason for a businessman to hire someone as “He has the best qualifications. “Because I think this school is the best place for her as a student to grow with her background” is just as good of a reason as “She has the highest scores.” “I love this family from my church and I love the thought of this home full of kids” is an equally fine reason for one to pick a buyer than “They had the best offer.” “Because he is my friend” is often a better reason to pick a contractor than “He had a lower bid.” But depending on the circumstance, all of these benevolent reasons could be nepotism, racism, religious favoritism, and corruption to the person who misses out on that opportunity.

Life is complicated. Saying “Bur it’s invidious discrimination that is bad, not normal discrimination” offers no help. It just inserts a word, “invidious” for “bad” without giving any actual guidance on what is bad in real life. It just assumes you already know. In real life, “the right decision” is often hard to make. The most qualified person can be a jerk. An entirely competent employee might not “fit in.” Sometimes someone is a jerk and doesn’t fit in and is black all at the same time, and it’s hard to tell where one of those factors stops and another begins in a dismissal. We’re human, and it’s tough. Even non-benevolent reasons like “But they’re really big donors” can not be ignored when real people with real budgets make real decisions in the real world.

Anti-discrimination laws are not the same thing as mandating that a person makes “the right decision.” Instead, they simply move part of the decision from one party to another. They are a tool. Even a simple question like “Should we factor race into this job?” can become complicated when, for instance, the job is playing Martin Luther King, Jr. in a play. And guess what? Title VII’s anti-discrimination law doesn’t give real exceptions there.

Now, before you go ballistic, it is not that there are no good reasons for anti-discrimination laws. THERE ARE. When entire segments of the population are cut out of essential services for life due to the amalgamated choices of private individuals, justice demands a rule that gives that segment of society an equal shot. Private choices are not always good choices. Just because the market makes it happen, that doesn’t mean it is just or fair. Additionally, sometimes society can choose to take on a burden to help out those in need, and a uniform non-discrimination rule can ensure that a helping hand does not create a market disadvantage. That’s not bad either. 

But these actions are gains of “justice.” They are not gains in “freedom.”

The Dangers of Micromanaging Life Through Law

Now is the time I am usually asked why I am in favor of discrimination. But this is a question that betrays a lack of understanding. I am not in favor of discrimination. I am in favor of the ability of a person to discriminate, because things are always more complicated than they seem. And freedom requires the ability to make a bad choice. Otherwise, there is no freedom.

Non-discrimination merely changes who can make a decision. Only if there is a long, broadly experienced, and/or unavoidable dead-end for group should we be discussing whether to take away the proprietary decision-making power from one group (the seller, employer, administrator) and give it to another party (the consumer, the job seeker, the applicant).

That’s because these decisions are hard, and every broad rule creates crazy situations on the margins. It also creates costs when things are difficult. Suppose someone is fired from a overwhelmingly-white business environment when he is a jerk, a mediocre worker, a “bad fit,” and black all at the same time. When there are  ambiguous facts in his dismissal, it will probably take a threat of a lawsuit (and a settlement offer, and attorney’s fees, and possibly litigation or even a trial) to figure out what actually went down, EVEN WHEN neither party is breaking the law, being frivolous, or just seeking to cash in.

Life is hard, facts are tough, and laws are very blunt and expensive instruments. And that’s even when they have good intentions and well-developed purposes behind them.

But then there are DC’s non-discrimination laws, seeking to institute a uniform codification of morality on private parties via the law. If you thought Personal Appearance was weird, I’ll also draw your attention to another. Note that it is illegal in D.C. to discriminate in hiring based on “political affiliation.” Wait, what? Now sure, there are exceptions at 2-1401.03(b) that allow actual political organizations, religious organizations, educational organizations, and charitable and education organizations connected to these other organizations, plus, at 2-1401.02.(8), their agents, (whew!) to discriminate by “giving preference to persons of the same religion or political persuasion as is calculated by the organization to promote the religious or political principles for which it is established or maintained.” On the one hand, this is a good exception to prevent an absolute absurdity. On the other hand, what exactly are we regulating anymore? Where is the problem of private, non-educational, non-political, non-religious, and non-politically-educationally-religiously-charitably-affiliated-or-contracting employers keeping people from jobs because they are “Democrats” or “Republicans”? Do such employers even exist in D.C.?

Why the micromanagement? Can we all just be adults?

The Real Source of “Personal Appearance” Discrimination

But let’s get real here. You know what “personal appearance” actually means. Of course none of those situations which wrestle with “personal appearance” as ordinary words with ordinary meanings actually get to the core of what this is about.

Instead, after a great deal of digging, I found the only published instance where “personal appearance” discrimination was a thing in court. In Underwood v. Archer Management Services, Inc., 857 F. Supp. 96 (D.D.C. 1994), a transsexual sued his employer after he “became” a woman. There appears to be another instance as far back as 1982 when a skate rink in DC paid $400 and issued an apology after it brazenly prevented a man dressed as a woman (or as he put in his own words, “I know I’m not a woman. I would think that if you have to characterize me, I would say now I’m a gay, transgendered male”) from utilizing the community skate rink.

It was long before this that “Personal Appearance” first appeared in the D.C. Code, as D.C. has been at the forefront of the LGBT movement for most of its history. In 1973, the Gay and Lesbian Activists Alliance pressured the City Council to amend DC’s own anti-discrimination law, which mirrored the federal law, to include sexual orientation, marital status, and personal appearance. In 2006, after mixed success on the issue of transsexual rights nationwide and in DC (back when courts found that the word “sex” meant “sex,” in opposition to current judicial winds) GLAA again pushed the DC City Council to change the law to “clarify”  that the law should be changed to include gender identity or expression. They were successful. And gender identity means, “a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.”

So, if you’re wondering how a law against “Personal Appearance” discrimination could exist in a functioning economy without totally bending the words out of any discernible meaning, it is helpful to realize that this law comes from a movement that is dedicated to bending words out of any discernible meaning for the purpose of advancing very particular social and political aims.

You know: “Love wins.”

Where Non-Discrimination Goes From Here

Rules of non-discrimination have come in waves in America. The first time non-discrimination for individuals arrived on the scene was for religious tests in elected office in Article VI, Section iii, of the Constitution. The next time it arose was in Grover Cleveland’s reform of civil service to prevent the “spoils system” of giving ordinary government jobs to political friends. With the decision of Brown v. Board of Education, non-discrimination in public school acceptance also was mandated, eventually.

The next time non-discrimination arose was the most important instance, with the series of reforms passed in the 1960s, which were the first to prevent discrimination by private citizens against private citizens, based on race, color, religion, or national origin in Title II the Civil Rights Act. Title VII of that Act expanded this protection, adding “sex” as a category, to discrimination by “employers” (that have 15 or more employees) in hiring and working conditions. “Age,” “Pregnancy,” and “Disability” have been added to this list with laws passed in 1967, 1978, and 1990, respectively. The Genetic Information Non-Discrimination Act also includes protections, with some highly technical exceptions.

The newest push for non-discrimination seeks to add LGBT protections to this list. Essentially, it will give the same protection of “sexual orientation” and “gender identity” that currently exists for “race.” You might also get a a bill creating “Personal Appearance” discrimination, too. Trust me, it’s not crazy. And the laws are changing all the time.

But if someone tells you that opposing non-discrimination laws is the same as advocating for discrimination, kindly remind them, “No, it is not,” and that “non-discrimination” and “freedom” are not the same thing.

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