A case worth watching

Across the country, a discrimination case could affect hiring practices here

Bruce Spotleson

Bruce Spotleson

Most of us like to rely on our own experience and expertise, but one of the keys to business success is knowing when to call for help.

I’ve learned to value the wisdom of a good attorney.

One such person is Mark Ricciardi, regional managing partner of Fisher & Phillips, which represents employers in labor and employment law cases.

I recently asked him about an Equal Employment Opportunity Commission investigation that could have implications for Las Vegas.

The EEOC has been investigating the Marylou’s chain of coffee shops because the Massachusetts company routinely hires young, attractive women as servers. The EEOC apparently engaged in the “commission-initiated investigation” without a complaint being filed. In aggressively pursuing the case, the agency said applicants and employees may not even know they were being discriminated against.

I don’t need to outline the possible implications of that here, where young, attractive women often serve cocktails.

The issue is whether there is anything illegal about an employer’s preference in hiring an “attractive” person over an “unattractive” person. Although a couple of states have laws that prohibit discrimination based on a person’s looks, Ricciardi notes that an appearance standard is one of the trickier things with which employers deal. It raises an array of issues, subjectivity and gender being just two of them.

“How do they enforce it so that it’s not just along gender line?” Ricciardi asked. “If you’re going to make it a requirement of the job, you’d better make it for both genders.”

The law permits employers to make selective hiring decisions for actors and performers. “Some might contend that cocktail servers are playing a role,” Ricciardi said.

The issue could hit close to home for managers in Southern Nevada since the EEOC appears to be getting more aggressive. According to Ricciardi, it already is “on the war path” in Las Vegas.

Employers should be aware, too, that EEOC investigations move along more swiftly these days than they have in the past. With an EEOC district office in Las Vegas now, people no longer have to travel to Los Angeles to file grievances. And the local office is fully staffed with a team of investigators on hand.

“They feel the Nevada Equal Rights Commission has given casinos a free pass for years,” Ricciardi said. “I think the EEOC will use whatever opportunity it can to try something in Las Vegas. Get ready for audits on companies, overtime violations, issues with independent contractors.”

If that happens, get ready to hire a qualified attorney, as well.