Reading last week’s headlines about the case of Debrahlee Lorenzana, the New York banker claiming she was fired because her good looks distracted her male colleagues, raised an alarm as to the public’s various misconceptions of critical issues in workplace law. Here are just a few of them.
In one article, the author claimed that Lorenzana’s wrongful dismissal case against her employer sparked a debate over “workplace sexual harassment.” Turning this case into an issue of sexual harassment could indeed be an interesting development in workplace law – except that it is wrong.
The Supreme Court has defined sexual harassment as conduct of a sexual nature that adversely affects the employee’s job or work environment. Lorenzana claims she was fired because she refused to change her attire when asked by her employer. So her claims are not really based on sexual harassment at all.
Was this a wrongful dismissal? Most employees believe they cannot be fired without a good reason. They are mistaken. Non-union employees have no “right” to continued employment, however long or meritorious their service. They can be fired as long as they are given severance. Whether Lorenzana’s employer wanted to fire her because it didn’t like her or how she dressed would make no difference as long as it paid her severance.
Is it discriminatory to rely on looks when firing an employee? In another article, the author suggested that if Lorenzana was treated differently because of her appearance, it could constitute discrimination under human rights laws. This would also be a major development in human rights law, except that it is also wrong. “Physical appearance” by itself is a not a prohibited ground of discrimination in any Canadian jurisdiction, unless a person’s appearance is being judged due to a personal characteristic such as race or colour. That is, while it would be contrary to human rights laws to judge an employee based on her colour, whether or not she is attractive receives no protection at all.
– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at firstname.lastname@example.org