The smile of America Ferrara, star of the hit TV show Ugly Betty has just been insured for $10m, a move that her on-screen colleagues would surely laugh at in disbelief. Ferrara, who plays ‘ugly’ Betty, with her brace-clad teeth, is depicted as being looked down on by her colleagues at a fictional fashion magazine for the way she looks, dresses and for living on the wrong side of town.
The bitchy workplace culture depicted in the show may seem extreme, but teasing colleagues about the way they look and sound is a reality in many organisations. A survey by Personnel Today last month of nearly 4,000 readers revealed that many HR professionals see certain characteristics as acceptable to tease people about and that high numbers of people with these characteristics have indeed been at the butt of jokes.
More than eight out of 10 survey respondents said that society believes it’s acceptable to tease people with ginger hair, while more than 70% said that blonde hair, regional accents, baldness, dress sense and shortness were also fair game. More than half said that being overweight, tall, having an unusual name, wearing glasses or having large body parts – be it breasts, ears or nose – made it acceptable to poke fun at you. While those with dandruff, acne, a speech impediment, bad teeth, body odour, small breasts or who were underweight were also regarded as being fine to tease.
Just having a laugh
No-one wants to create a sterile working environment where light-hearted banter is strictly ruled out. Having a ‘laugh’ with colleagues is, after all, what gets many of us through the working day. But legally – and for the protection of employees – a line has to be drawn before innocent comment becomes full-blown harassment.
“The difficulty is that a comment that one person may laugh off could cause distress for someone else. If remarks are made persistently, this may also cross the line and make someone feel like they are being targeted. It can be hard for the person making the remark to understand the effect that their comment makes, when they see it as good-natured teasing,” says Fiona Montgomerie, solicitor at Reynolds Porter Chamberlain.
Although there is no direct legislation relating to ‘lookism’, teasing staff about their appearance may fall under current discrimination laws. For example, calling someone a ‘bald coot’ could be seen as age harassment under the new age discrimination rules.
“Teasing someone for being short-sighted or for having a speech impediment could be seen as disability discrimination, as could remarks made about someone who is underweight and who may have anorexia,” says Simon Henthorn, also at Reynolds Porter Chamberlain.
Other “harmless” teasing could also lead to discrimination claims. Sarah Turner, employment partner at law firm Turner Parkinson, says that remarks about large or small breasts could be seen as sexual harassment, while being teased about being overweight or underweight could be seen as disability discrimination if there is an underlying medical problem. “Scars, birthmarks, acne or other skin complaints may also be viewed as a disfigurement and so would fall under disability discrimination rules,” she says.
There is no direct legislation about discriminating against a regional accent, but Turner says that employees being teased about an Irish, Scottish or Welsh accent could be protected under the Race Relations Act.
However, the absence of direct legislation protecting other target areas, such as having a regional accent or ginger hair, does not mean that teasing cannot form the basis of a claim. When something starts off as a bit of a joke and goes too far it could lead to a claim for constructive dismissal or a harassment claim under the Protection from Harassment Act.
“Insensitive jokes fall within the definition of harassment. Even if the nature of the bullying or teasing does not come within the areas protected by legislation, employers do, in any event, owe a duty of care to stamp out such bullying – or they could face constructive dismissal claims,” says Turner.
Judith Watson, head of employment at law firm Cobbetts, warns that constant teasing may also lead to health problems if the person feels victimised, which could lead to separate claims. “If comments lead to someone becoming ill or stressed, it could then lead to a disability or personal injury claim,” she says.
Harassment and bullying
It is worth remembering the outcome of the case last August where ex-Deutsche Bank employee Helen Green won £800,000 in damages and lost earnings after bullying led to a nervous breakdown.
“Here the employee accused fellow workers of making mean and spiteful comments, such as saying that she stank. These comments did not fit into a specific discrimination category, but were classed as bullying under the Protection from Harassment Act and led to the big payout,” says Watson.
It is easy to believe that some employers in very image-conscious industries such as fashion retail, may prefer to employ staff who have a certain ‘look’. But if an applicant suspects that they have been turned down for a job because of the way that they look or sound, it would be very hard for them to prove that they hadn’t been turned down for other reasons. “Although unfair, unless disability is involved, this is not currently discriminatory,” says Montgomerie.
However because our looks tend to fade somewhat as we get older, if employers are choosy about how their workers look, there could be grounds to link claims to age discrimination.
Turner cites the case of Vaux and Associated Breweries v Ward, where an employer sacked a barmaid because they wanted someone younger and more attractive. Even though the case was decided before the age discrimination laws came into force, the employee successfully claimed unfair dismissal.
“If that happened now the person would most certainly have a claim for age discrimination on the basis of wanting somebody younger,” she says.
Henthorn says it is vital that employers stay up-to-date with emerging case law and educate staff about the type of claims that can exist. “Employers need to learn lessons from new case law and, in the meantime, educate their workforce about their obligations and ensure formal mechanisms are in place to report bullying or teasing. Staff need to know what they should do and what they can expect should they make a claim,” he says.
Duty to protect employees
Employers should also make it clear in their workplace policies that jokes or teasing of this nature will not be tolerated. “Employers are under a duty to protect employees from such conduct and the policy should make it clear that any breach will result in disciplinary proceedings,” says Turner.
She adds that where possible all staff should receive awareness training as part of their induction to drive home the message that bullying, harassment and jokes of a discriminatory nature will not be tolerated. “Employers who fail to take such steps could find themselves on the receiving end of a claim,” she says.
In the US state of Michigan, more direct legislation exists to prevent discrimination about height. The problem of ‘heightism‘ is perceived to be serious because of the above average heights of the majority of chief executives. Is this taking things too far, or would more direct legislation be helpful in the UK?
Turner says that there is a risk of over-legislating, but it cannot be ruled out. “Sex and race discrimination legislation was introduced in the 1970s at a point when such behaviour was widely considered acceptable, but tribunal decisions have brought about cultural change. Times change and new legislation soon becomes accepted.”
So tread carefully, those jibes about ginger hair could inspire a whole new raft of legislation.
What HR thinks society believes isacceptable to tease people about
Ginger hair 81%
Blonde hair 75%
Regional accent 74%
Eccentric dress sense 70%
Unusual name 65%
Large breasts 63%
Large ears 61%
Large nose 58%
Small breasts 49%
Body odour 45%
Bad teeth 40%
Speech impediment 40%
What HR personally believes is acceptable to tease people about
Ginger hair 20%
Blonde hair 22%
Regional accent 22%
Eccentric dress sense 20%
Unusual name 17%
Large breasts 7%
Large ears 7%
Large nose 7%
Small breasts 5%
Body odour 8%
Bad teeth 5%
Speech impediment 3%
Percentage with this characteristic who have been teased
Ginger hair 79%
Blonde hair 54%
Regional accent 87%
Eccentric dress sense 84%
Unusual name 77%
Large breasts 73%
Large ears 82%
Large nose 70%
Small breasts 59%
Body odour 91%
Bad teeth 51%
Speech impediment 91%