It has long been believed that bald men do not fare well in the workplace, suffering from hidden bias that results in their failure to get hired or promoted at the same rates as those with a full head of David Hasselhoff-like hair. My husband contends that this is one of the few categories of employees it is still deemed appropriate to poke fun at. I will not comment on the state of his follicular impairment except to say that he is often compared to Cal Ripken, Jr.
I’ve written previously that the newly enacted Genetic Information Nondiscrimination Act (GINA) may have a whole host of unintended consequences, including potential claims for overweight employees. GINA may offer a claim for follically-challenged individuals as well.
GINA protects against the discrimination based on genetic information. Genetic information includes the manifestation of a disease or disorder in the family member of an employee. At least some types of hair loss are widely deemed to be a result of a medical disorder, and some sources even appear to classify male-pattern baldness as a “hair disorder.”
Remember, GINA does not cover manifestation of a disease or disorder in the employee him/herself: that is medical information, not genetic information, and therefore governed by the Americans With Disabilities Act (ADA). Baldness alone would not likely qualify as a disability under the ADA. However, if an employer were to observe the manifestation of hair loss in a family member, an employee or applicant who believed he was being discriminated against based on his baldness could conceivably state a claim under GINA.
GINA also prevents an employee from a hostile work environment based on genetic information. Harassment could include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Just like hostile work environment claims based on other protected categories, the incidents would have to be severe or pervasive and simple teasing and offhand comments will not generally state a claim. Certainly, though, there could be circumstances where teasing about baldness, along with other instances, could amount to a hostile work environment.
It may be hard to show that discrimination or harassment was based on baldness was because of genetic information, rather than appearance, which GINA nor any other federal law prevents (unless the appearance was related to age, race, gender, disability or other protected category). But that wouldn’t stop a disgruntled or hurt employee from filing a claim. I highly doubt that MX Energy discriminated against Pamela Fink because of her genetic information – after all, she took the most aggressive step she could to address her genetic condition: she got a double mastectomy upon learning she carried the BRCA gene for breast cancer. Nevertheless, she presents as a highly sympathetic plaintiff and her attorney was able to drum up a whole lot of bad publicity for her former employer by invoking a GINA claim.
So watch out, employers! Creative plaintiffs’ attorneys can and will use GINA to create claims where none may have existed before. Given the right set of facts and a sympathetic plaintiff, a bald discrimination or harassment claim under GINA could actually grow roots!