by Sara H » Sat Dec 29, 2012 10:38 am
Yeah I think you're right Catmoon.
I think sooner or later this was bound to come up in such an obvious way in the courts and need to be battled out.
It does raise some interesting questions, for instance if someone cannot help their acne due to a skin condition, etc.
I think the "Sexy" issue makes it very simple, for instance the breast size thing; a woman cannot help that she has boobs and that someone finds them attractive.
Firing her on that basis would seem to be denying her the liberty to have a job based on nothing other than the fact that she is a normal female dressing in a manner normal to normal women (such as applying makeup at work, which is expected of women).
I think you're right, and that sooner or later this was and is going to have to be clearly spelled out and defigned, as what is, in fact acceptable in regards to letting someone have a job or not based on aesthetics.
Generally, the courts have ruled that aesthetics that a person cannot help, such as being a woman, being genderqueer, being old, being black, etc, are not acceptable grounds for denying someone a job. So if history is any precedent, I imagine as this gets fought out and appealed, and tested and sued over, whether in this case or others, I would imagine that sooner or later the high courts will say that this kind of ruling such in this specific case is not ok.
But this is how these things happen and get defined legally in our society,
Some court makes a crappy ruling, and another one later has to come and undo and defign it more in a broader context.
That's actually normal, that's exactly what has happened in the Gay Rights area for instance, and most other areas of civil rights, which this kindof ruling falls under.
A lot of time state judges which want to preserve some sortof "culture" or who arn't used to making rulings based on federal law, because they mostly interpret their own states constitution, will say that sometimes some pretty inappropriate things are ok. But that's kindof normal, because often the state constitution that they are interpreting does not say anything about this sort of thing, so they say "well it's not against the state constitution..." and sometimes they have traditionalist views they are upholding.
Put up against federal law and federal court, this thing usually doesn't hold up in the long term because federal laws are more simply and clearly defined, and with a broader history and context of clear interpretations on such matters.
I used to have to deal with this sortof thing a lot as a Queer activist, I still have to regarding how laws apply to Genderqueer and Transgender people, this kindof ruling is very similar to that.
Usually it comes down to whether the person can "help" being the way they are, or not.
A woman wearing normal dress that is expected for a woman, and with woman's body, will likely not be an acceptable excuse to fire her in federal court.
Someone cannot necessarily "help" if others find them attractive.
It's one thing if she were wearing something inappropriate for the workplace as defined by normal standards, such as if she showed up in a bikini.
But simply because her body type and physical appearance is attractive, is I would imagine later on going to be interpreted as either sexual orientation discrimination (which it actually is) or "normal" (sadly) sexual gender discrimination. Which it also is.
I think most legal experts would look at this and shake their heads and laugh.
It's a rather shortsighted, and likely to be overturned ruling, if not by her, if she doesn't challenge it, then by someone else.
I women's rights group may even intentionally sue over this just to take it to higher court.
Activist groups will do that sortof thing.
In Gassho,
Sara H
"Life is full of suffering. AND Life is full of the Eternal
IT IS OUR CHOICE
We can stand in our shadow, and wallow in the darkness,
OR
We can turn around.
It is OUR choice." -Rev. Basil
" ...out of fear, even the good harm one another. " -Rev. Dazui MacPhillamy
