Recently, several posts on LinkedIn made mention of the fact that Beautifulpeople.com, a dating website, is launching a recruiting service for employers. Almost immediately, the question was raised: can employers hire based on looks? What if they restrict the pool of applications to “beautiful people”? Would this be a violation of human rights legislation? In short, the answer is “probably not”. Physical attractiveness is not a ground that is protected by human rights legislation in Canada, and therefore hiring decisions made on that basis, while they may not be advisable HR practice, would not be “illegal”. Of course, answers to this type of inquiry are rarely simple. They will always depend upon the context, and if the attractiveness of an applicant, as judged by the potential employer, can be shown to relate to a ground that is protected by human rights legislation, then a claim may be viable.
There is a common misconception that all forms of discrimination are prohibited by Canadian employment law. That is far from true. Employers are free to discriminate against people for almost any reason, including ridiculous ones. An employer could choose not to hire fans of a particular sports team, or men that wear bright ties, or applicants that attended a specific university. Similarly. employers could arbitrarily decide to interview only every third applicant, or every applicant that had a resume printed on beige paper. None of these approaches relate to grounds that are protected by legislation and none of them is contrary to the law, however silly they may be.
In Ontario, the specific grounds that are protected by the Human Rights Code are race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, gender identity, gender expression, age (18 and over), record of offences (provincial and pardoned federal offences), or disability. Legislation across the country is similar. It is important to remember that the legislation covers both direct and indirect discrimination. Direct discrimination would include, for example, job postings which state that certain groups will not be considered; for example, “No Jews or Blacks need apply”. This is obviously a breach of human rights. However, indirect discrimination is also a breach. In the past, some hiring criteria were found to be unlawful because while on their face, they did not relate to prohibited grounds, they had an indirect relationship. A classic example is the requirement that employees be of a certain size. While size is not a protected ground, men tend to be bigger than women. As a result, the criteria does relate to a protected ground (gender) and, unless there is a bona fide occupational requirement, then it would contravene the legislation.
In that context, consider an employer that hires using beautifulpeople.com. Apparently, the dating aspect of the site is for “attractive people” only, and applicants are voted on by existing members. It is not difficult to imagine that people may judge attractiveness based upon grounds that are protected, however, such as age, ethnic origin, or disability. If an applicant can demonstrate this, then arguably, there will be a breach of the Code. While employers can often defend against allegations that a hiring or firing decision was made based upon prohibited grounds, it would be hard to imagine an employer claiming that they did not hire based upon attractiveness if the extent of their search was through beautifulpeople.com. However, that does not, in and of itself, lead to a conclusion that human rights legislation was breached. To reach such a conclusion, it would have to be clear that a protected ground was a factor.
So while the simple answer to the initial question was “probably not”, the more detailed answer will have to be “maybe”.
Stuart E. Rudner
Rudner MacDonald LLP
Canadian Employment Law