Unless you run a dental practice, I can’t imagine why a fetching, toothy smile would be a job qualification. But, apparently, a large chain of gas/convenience stores has that policy.
In writing. (Although, there is an exception for people with a disability.)
I can only imagine the job interview:
“Hey, job candidate. Your resume is impeccable. And you aced the gas pump and cash register tests. But I noticed you have a jacked-up set of teeth. Do you have a disability or just practice poor oral hygiene?”
Putting aside the awkward and potentially unlawful interview questions, there’s a bigger problem — one I explored with Lizzy McLellan Ravitch in her article for The Philadelphia Inquirer. A policy like this could give rise to a disparate impact claim against the employer.
What is disparate impact?
Disparate impact claims under Title VII of the Civil Rights Act of 1964 occur when an employer uses a neutral employment practice (such as a test or selection criteria) that has a disproportionate negative impact on a protected group, such as a minority group, and the employer cannot demonstrate that the practice is job-related and consistent with business necessity. In other words, the employer’s actions may not be intentional discrimination, but they still have a discriminatory effect. To prove a disparate impact claim, the employee must show that the employer’s practice causes a significant difference in the outcome for different groups and that there is no valid justification for the difference.
That’s not bad.
I’ll add that even if the defendant proves this business necessity defense, the plaintiff can overcome it by showing that an alternative policy exists that would serve the employer’s legitimate goals and the challenged policy with a less discriminatory effect.
In this case, I struggle with why a chain of gas/convenience stores must ensure that none of their workers have prominent missing, broken, or badly discolored teeth. Is anyone really going to drive right past the pump because Susan has a grin like Bobby Clarke? If I’m going elsewhere, it has nothing to do with how the employees smile at me.
It’s because I need a Wawa shortie or some Royal Farms fried chicken. Those jawns are 🔥🔥🔥.
For what it’s worth, the other major gas/convenience store chain in the Mid-Atlantic region has confirmed that it is currently reviewing its smile policy.