Deformities covered under discrimination
Published 09/30/05

If an employer refuses to hire a job applicant because of a physical deformity which makes that applicant unattractive, the employer may be liable for disability employment discrimination.

This reality was illustrated in the $34,000 settlement by Hardee's of a discrimination lawsuit alleging that one of its restaurants repeatedly refused to hire a job applicant because her face was disfigured. The woman applied more than once for an entry level work at the Hardee's in Oak Grove , Missouri and was never hired, notwithstanding the fact that she and the Equal Employment Opportunity Commission ("EEOC") claimed that there were others with no better qualifications that were given jobs while she was not.

This applicant had Treacher Collins Syndrome, a birth defect that caused a malformed cranial bone structure, asymmetrical eye placement and the absence of ears. The EEOC claimed that Hardee's officials threw away the woman's applications and that Hardee's actions constituted a violation of the American With Disabilities Act (" ADA ").

The EEOC indicated that it would be able to prove in Court that Hardee's would not hire this applicant because of her facial disfigurement rather than because she could not do the work.

Her physical deformity made her disabled or at least Hardee's regarded her as disabled. Had she not had a physical deformity and Hardee's merely refused to hire her because it felt she was not attractive enough, there could be no claim of disability discrimination under the ADA .

However, depending on the facts and circumstances, the employer might be liable for a gender employment discrimination claim, as noted in a previous article dealing with L'Oreal which appeared September 2, 2005.

For employers, this settlement is a reminder that if an applicant with a physical deformity applies or a job, he should be considered on the merits of his skills as they related to the job requirements and whether or not the applicant could do the job with or without a reasonable accommodation.

Also, not all physical deformities may rise to the level of an impairment that substantially impairs a major life function and therefore constitute an actual disability under the ADA . However, if the employer has failed to hire the applicant as a result of that deformity, the applicant and/or the EEOC may have a credible argument that the employer refused to hire the applicant because it regarded the applicant as disabled and therefore still violated the ADA .

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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