This is the first hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.
Navigating the treacherous waters of federal employment law is not easy. Well-intentioned employers can unknowingly violate some of the more complicated (albeit well-known) laws like the Family & Medical Leave Act and the Americans With Disabilities Act due to a lack of familiarity with the applicable regulations or the case law interpreting them. When an employer has operations in multiple jurisdictions, the analysis becomes even more complex due to circuit splits on pivotal issues.
With so much to worry about on the federal front, it is no wonder that human resources personnel, in-house counsel, and outside counsel often do not spend sufficient time and resources staying apprised of some of the more obscure state laws on the books. If you are reading this article, you almost certainly have internal or external clients relying on you to give them accurate advice whether the applicable statute is federal or state, well-known or obscure, recently-passed or decades old. The purpose of this article is to highlight the importance of this obligation through four different hypothetical examples over the next few weeks of well-intentioned employers violating unfamiliar state laws.
For purposes of the hypothetical examples, assume you are in-house counsel for a large restaurant chain with operations throughout the United States. You do not have human resources personnel in each state, and you often are called upon to render advice regarding the legality of various employment decisions.
You receive a call from a manager of one of your restaurants located in Washington D.C. He is in the process of hiring a new waitress and is deciding between two female candidates with no known disabilities who are the same age, race, and national origin. Candidate #1 has several years of experience as a waitress, while Candidate #2 has virtually none. The restaurant is located close to several Georgetown University fraternities and its customers are predominantly male. The manager feels that Candidate #2 (who is more physically attractive than Candidate #1) would draw more male customers into the restaurant. The manager asks you whether it is illegal to make a hiring decision based on the physical attractiveness of a candidate. Although you do not personally approve of the manager’s decision-making process, you advise the manager that there is no legal bar to using a candidate’s physical attractiveness in making a hiring decision so long as the manager does not use age, race, national origin, or a known disability as a factor in his decision.
Candidate #1 files suit against the Company under the Human Rights District of Columbia Code, which prohibits discrimination on the basis of “personal appearance.” See Washington D.C. Human Rights Act of 1977, D.C. Code §2-14014.01. The manager testifies at trial regarding his rationale for selecting Candidate #2 over #1 (her physical attractiveness), and judgment is entered against the Company for reasonable attorneys’ fees, costs, and compensatory damages.