In the employment setting, there is a constant tension between an employer’s desire to control its image and employees’ rights to be free from discrimination and to freely express themselves. While it is generally accepted that an employer may impose appearance-based requirements if it establishes a legitimate business reason for the rule, it seems hard to believe that an employer could justify refusing to hire a person based on their physical appearance. However, in two recent decisions, the British Columbia Human Rights Tribunal found that race and age can in fact be bona fide occupational requirements. In Von Rotsburg v. Local Colour Talent and Another, 2012 BCHRT 36, Ms. von Rotsburg complained that Local Colour Talent Agency discriminated against her in the area of employment on the grounds of her race, contrary to the Human Rights Code. Ms. von Rotsburg, who worked as a background performer in television and film productions, alleged that the agency refused to represent her because of her race. The agency not only agreed with this fact, but also argued that it chose not to represent her because of her age and gender. It argued that the visual nature of the motion picture industry makes a performer’s appearance a bona fide occupational requirement (BFOR). It submitted that the decision not to represent Ms. von Rotsburg was not based on stereotypical assumptions about her characteristics, but rather on concerns that representing her would diminish prospects for its clients with similar appearances. The tribunal accepted these submissions and found that the talent agency could establish a bona fide occupational requirement to justify its refusal to represent her. In another decision involving Ms. von Rotsburg, the tribunal considered Urban Casting’s refusal to represent her on the basis of her age (Von Rotsburg v. Urban Casting, 2012 BCHRT 9). The tribunal accepted that the choice of actors in the film industry is primarily based on appearance. It found that the agency could establish a bona fide occupational requirement because the requests it received for performers were typically very specific with respect to gender, ethnicity and appearance. Therefore, the tribunal concluded that Ms. von Rotsburg’s complaint had no reasonable prospect of success. While the outcome in these cases may seem surprising, they should not be taken as condoning discriminatory hiring practices. The decisions should be read carefully in their limited context, the highly appearance-based film industry. The tribunal’s acceptance that a person’s appearance can be a BFOR is notable, but it is very unlikely that this proposition will be expanded to more typical employment relationships. Employers would be well-advised to carefully consider any appearance-based rules they may wish to impose and ensure that there is a legitimate, non-discriminatory justification for them.
If you would like to discuss this issue further, please contact Alison Bird, lawyer in the Halifax office of Cox & Palmer at coxandpalmer.com or 902.491.4138.
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