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BusinessColumnistsCarrie Mason-Draffen

Personal appearance is fair game in job review, lawyer says

A woman writes that her husband receives demerits

A woman writes that her husband receives demerits on his annual review because he grows a beard in winter and also because he misses a few days each year for a medical procedure. She wants to know if the demerits are legal. Photo Credit: iStock

DEAR CARRIE: My husband recently had his annual review. His company rates employees on a scale of 1 to 4, with 4 being the highest. He received a 2 for "appearance." I am convinced it's because the boss doesn't like my husband's beard. My husband grows a beard during the winter, and I don't think he should be penalized for that. He also received a 2 for attendance. While my husband didn't miss a lot of days, those he missed were directly related to a heart problem that required medical procedures to correct. I do not think it is legal for his boss to punish him for a severe health problem. I'd like to know what you think. -- Questionable Appraisal

DEAR QUESTIONABLE: As evaluations are often linked to merit pay or bonuses, getting a poor one can be both demoralizing and costly. So I understand your concern about your husband's, especially since some of the scoring seems arbitrary. I asked an attorney to weigh in on both issues.

In New York and most other states, it's generally not illegal to discriminate on the basis of personal appearance, said employment attorney Richard Kass of Bond Schoeneck & King in Manhattan.

But here's a big caveat: If the poor scoring for appearance was also linked to discrimination on the basis of such factors as race, sex, age or disability, then the evaluation could be unlawful, Kass said.

"If the husband had a year-round beard because of religious requirements or because of a skin condition that prevents shaving, then the employer's action would be more problematic," Kass said.

By the way, in the District of Columbia and a few other jurisdictions, it's unlawful to discriminate on the basis of personal appearance, Kass said.

But in New York, absent unlawful discriminatory factors, the boss is free to rate your hubby's appearance as he sees fit.

"There is no law that prohibits the reader's husband's boss from penalizing him for having a repulsive beard," Kass said.

As for the unfavorable attendance rating, in general employers can keep tabs on employees' attendance.

"There is nothing wrong with keeping track of attendance, even when the attendance is caused by a medical condition," Kass said.

But if the poor attendance rating has repercussions for the employee, the situation becomes trickier for employers.

"If a bad attendance rating results in discharge, demotion or some other nontrivial negative impact," Kass said, "then absences caused by a serious illness should not be taken into account, unless the absences are so frequent that the employee is no longer performing the essential duties of his job."

He also said the absences cannot be held against employees whose missed time was covered by the Family and Medical Leave Act. But that law protects only eligible employees at companies with at least 50 employees.

DEAR CARRIE: Can employees be notified verbally about the end of their jobs and also lose all their entitlements from the company, including a "loyalty bonus" payment that should have been paid several months ago? -- Suddenly Gone

DEAR SUDDENLY: New York is an employment-at-will state, and that means that you can be let go at any time and for any reason, unless a union contract or employment agreement prohibits a summary dismissal.

As for not getting the bonus, you should check the fine print of your ex-employer's benefits policy. As some companies have policies that cancel employees' remaining paid time off when they leave for any reason, your ex-employer may have a similarly restrictive policy for bonuses.

Call the New York State Labor Department for more information at 516-794-8195 or 212-775-3880. Go to the Wages and Hours FAQs for more on employment at will in New York State.

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