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Is Appearance Discrimination Illegal? An Employment Law Take on the Brandy Melville Documentary

Posted by Giovanna A. D'Orazio | Apr 29, 2024

Last night we watched Brandy Hellville & the Cult of Fast Fashion on Max with our 12 year old daughter.  For those, like us, who may be too old to have been caught up in the Brandy Melville craze ourselves and are now learning about it from our kids, Brandy Melville is a mysterious Italian clothing company that exploded around the 2010s, catering to young girls and women with a California-cool, bohemian aesthetic.  It is an early example of Instagram, influencer culture apparently having few or no actual models or ad campaigns, and relying primarily on customer-based photos and influencers.  It is also unique in having no sizing – all its clothes are “one size fits most”, which equates to a US size XS/S (so you can see where this is going…).

The documentary is informed by (and features the author of) a 2021 expose in Business Insider that revealed a culture of racism, antisemitism and sexism within the company, as well as its unhealthy emphasis and focus on skinny, white, often very young women.

The documentary raises an issue that comes up from time to time in our practice: appearance discrimination.  So today we are going to talk about when that is, and is not, illegal.  Typically, at least in New York and on the federal level, there is no such thing as general appearance discrimination.  But, when an employer's problem with someone's appearance is really because of their protected status (like race, age or a disability), then you can have a problem.

A context that would be illegal, and was raised in the documentary, is appearance discrimination that is really race discrimination.  Here, it was alleged that, in Brandy Melville stores, only white girls were hired to face the public, whereas Black women and women of color were relegated to the storage room and other behind the scenes positions.  Negative employment decisions based on race are illegal.

There was also an alleged focus on hiring women with long, flowing often blonde hair.  In New York, the law defines race discrimination to include discrimination based on “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles,” including braids, locks, and twists.  So that could be an issue here too.  Religious discrimination can also include discrimination because someone's hair is covered, like by a hijab.  (Abercrombie was accused of this type of discrimination in a lawsuit that went all the way to the Supreme Court).

What about the focus on hiring pretty, skinny women regardless of race?  This could be more complicated.  Typically, employers are allowed some discretion in hiring employees whose overall look is consistent with the desired vibe or aesthetic of the business.  But, we are starting to see some regulation in this regard.  For example, while not a state-wide law, New York City has banned discrimination based on weight and height in its human rights law.   It is also possible to see this issue implicating age or disability-based discrimination.   Is the reason you're not “pretty” really because you're too old?  Or do you look a certain way because of a disability?

The documentary raises a lot of important issues about how we treat women in the workplace, how toxic Instagram culture impacts our young girls' self-esteem and worth (eating disorders were another theme), and presents this all in the context of fast fashion and its impact on our environment and vulnerable populations throughout the world.  A lot to take in!

If you believe you were fired because of a problem with your appearance that was really about your race or other protected status, give us a call or complete an intake form on our website.  We're happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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