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24 February 2010
One of the most bizarre news stories of 2009 centred on a teenage girl - dubbed 'the star girl' by the media - who claimed that an expert tattoo artist had tattooed 56 black stars on her face, although she had asked for only three. She later admitted to having lied about the misunderstanding and clearly regretted her decision. It is hoped that the girl will come to like her tattoos, but will other people - particularly future employers - be required to accept them?
Similar questions surround the more general issue of discrimination on grounds of physical appearance. Can an employer reject a job applicant with a striking and unsightly scar? Does the nature of a position justify differential treatment based on physical appearance? Can an employer legitimately dismiss an employee who comes to work with a new facial tattoo?
In Belgium, the relevant rules regarding non-discrimination in recruitment and selection are laid down in:
Collective Labour Agreement 38 provides that job candidates may not be treated in a discriminatory way. Specifically, an employer may not discriminate on the basis of personal factors if these have no bearing on the function or nature of the enterprise, unless such elements are required or permitted by law. The employer cannot discriminate on the basis of age, marital status, sexual orientation, disability, health, race, colour, national or ethnic origin or place of birth, political or philosophical opinions or membership of a trade union or other organization. However, neither agreement mentions physical characteristics.
Nonetheless, it is generally acknowledged that even in the pre-contractual phase, parties negotiating an agreement must act in a normal, careful and thoughtful manner. Selection may not be arbitrary; rather, it must be consistent with principles of relevance and legitimate purpose. An employer must have a reasonable explanation for refusing to hire an applicant. This reflects the position in Article 1 of International Labour Organization Convention 111, which stipulates that a distinction, exclusion or preference in respect of a particular role and based on the inherent requirements thereof is not discriminatory. The Antwerp Labour Court has expressed a similar view. It considered that the refusal to employ a person as a district steward because he was bald and tattooed constituted an extra-contractual offence, and awarded the claimant around €2,500 in damages. The court found that the criterion that the employer had applied was irrelevant to the nature of the role and the conditions for fulfilling it.(1)
The act prohibits discrimination on the grounds of physical characteristics. It applies to characteristics that are not fully under a person's control, such as birthmarks, baldness, height, ugliness or obesity. Tattoos, piercings, hairstyles or facial hair are not 'physical characteristics' for the purposes of the act.
Differential treatment based on physical appearance is justified if a characteristic constitutes an essential and determining professional requirement because of the nature of the professional activity or the context in which it is performed, provided that the objective is legitimate and the requirement is proportionate to the objective. The consumer discrimination argument - that is, the belief that clients will react negatively to ugly, fat, disfigured or disabled employees - is not persuasive in this context. Physical appearance can be used as a selection criterion only if it is essential to a role. For example, this is not the case for airline cabin crew, restaurant waiting staff or salespeople, whereas if the essence of an automotive show model's role is to look attractive next to a car, appearance is a legitimate selection criterion.
The provisions of the Anti-discrimination Act of May 10 2007 and Collective Labour Agreement also apply to the termination of an employment contract. However, tattoos, piercings and similar physical features are not covered by these provisions. If an employee believes that he or she has been dismissed because of a new tattoo or piercing, he or she can claim moral or material damages on the grounds of abuse of law (which, in this context, arises when the motivation for the dismissal appears to be unconnected to the employee's normal economic and social function). The employee must be able to prove tortious conduct by the employer in order to show that the latter abused its right to terminate the employment contract, in which case he or she can bring a claim for damages in addition to indemnity in lieu of notice.
The Brussels Labour Court upheld an employee's claim for illegal dismissal because the employer had fired him for physical incapacity two months after the employment contract had entered into force, even though the employee had passed a medical test - conducted by the employer's medical service - which had confirmed that he was physically able to fulfil his job functions. The real reason for the dismissal was related to the employee's obesity. The court calculated the compensation for moral damage ex aequo et bono (ie, on the basis of what is right and fair) at €1,735.(2)
However, labour courts are generally reluctant to rule in favour of employees on this basis. In an earlier case the Ghent Labour Court of Appeal rejected a compensation claim by an employee who was dismissed for just cause because of his intense body odour - a symptom of his hyperhidrosis. The court found that the claimant had not adduced sufficient evidence that his employer had abused its right to dismiss or that he had suffered further damage.(3)
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Chris Van Olmen