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Manager Commenting About Employee's Physical Appearance During Job Evaluations

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  • 06-29-2012, 08:29 AM
    Novice
    Manager Commenting About Employee's Physical Appearance During Job Evaluations
    My question involves labor and employment law for the state of: NJ

    I am writing with a question about the conduct of a district sales manager during quarterly job performance evaluations.

    In a sales office, the employee is consistently the top performer in terms of sales and commission for both the office and personally. The employee is always dressed neatly and professionally.

    However, during the last two performance evaluations, the district manager (who is not based out of the same office) began the conversations by commenting that the employee was "too thin", "looked sick" and "wasn't happy". The district manager is not a physician, qualified to make such "diagnosis'", nor was she asked for her opinions.

    Is it legal for a manager to make such comments to an employee? Particularly in the realm of a performance evaluation, the behavior seems questionable at best?

    Is there recourse for the employee in such a scenario?
  • 06-29-2012, 08:47 AM
    LawResearcherMissy
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    Quote:

    The district manager is not a physician, qualified to make such "diagnosis'", nor was she asked for her opinions.
    You don't need to be a physician to opine that someone looks thin, looks ill, or looks unhappy. If that were required, the tabloids would spend all of their time in court defending their observations about Snooki's giant rack.

    Quote:

    Is it legal for a manager to make such comments to an employee?
    Yes.
  • 06-29-2012, 11:08 AM
    eerelations
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    I'm not a doctor, nowhere near, and I can identify people who look too thin at 50 yards - even without my glasses on! And there are no laws out there that would prevent me from telling these people that they look too thin to me.
  • 06-29-2012, 11:17 AM
    Novice
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    You're also not in a managerial or supervisory position over Snooki, or whatever other people you're looking at from 50 yards away.

    My question was in regard to comments made as part of a performance review.
  • 06-29-2012, 11:31 AM
    LawResearcherMissy
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    The answer stands. No, it's not illegal to make comments on an employee's personal appearance, so long as they are not sexually harassing, and one need not be a physician to make such observations.

    Now why don't you take yourself somewhere else, instead of getting snippy at volunteers just because you didn't like the legally correct answers you were given?
  • 06-29-2012, 11:46 AM
    Novice
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    Thank you LawResearcherMissy. I am interested in a practical legal definition of what is considered harassment. in the workplace. From what I've been able to find on the FCC's website:

    Unwelcome verbal or physical conduct based on race, color, religion, sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), sexual orientation, or retaliation (sometimes collectively referred to as “legally protected characteristics”) constitutes harassment when:

    The conduct is sufficiently severe or pervasive to create a hostile work environment; or
    A supervisor’s harassing conduct results in a tangible change in an employee’s employment status or benefits (for example, demotion, termination, failure to promote, etc.).


    The comments are coming from a same-sex manager. The manager's sexual orientation is unknown. The comments are being made in the context of a performance evaluation, i.e., "I know your numbers are the best in the office, but you're too thin, you look sick, etc." In this context, I was asking if the comments are inappropriate and/or in violation of law.

    If the consensus is that they are not, then fine.

    And, I understand that responders to this forum are volunteers. However, I asked a question about a work scenario, and I was given a flippant answer about someone ogling a television personality... And then, the individual, unsatisfied with his/her first response, felt it necessary to make a second flippant response to my question.

    That said, I don't think I was out of line or "snippy" at all. I don't have any problem with, and I appreciate a legally correct answer.
  • 06-29-2012, 12:20 PM
    LawResearcherMissy
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    Quote:

    In this context, I was asking if the comments are inappropriate and/or in violation of law.
    Once more, they are not.

    Eerelations has already explained to you that there are no laws prohibiting employers from remarking upon employees' personal appearance. She's an HR professional.

    The answer to your question, no matter how many times you ask it, is No.
  • 06-29-2012, 12:23 PM
    eerelations
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    I never mentioned Snooki in my response to you. If you're going to make snide remarks to us, at least send them to the correct responders.

    Now here's your legally correct answer again:

    There are no laws anywhere in the US that prohibit employers from making comments about their employees' physical appearance, during performance reviews or at any other time.

    While you may consider your employer's comments to be harassment, they do not constitute illegal harassment as defined by law. For harassment to be illegal, it must be directed at certain specified characteristics such as race, age (only 40+), religion, gender and/or disability. Nowhere in any of your snippy little posts have you indicated that your boss made any comments to you about your race, age, religion, gender and/or disability.

    Now that you have your legally correct answer, piss off and take your snippy little self elsewhere.
  • 06-29-2012, 12:28 PM
    Beth3
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    Is it legal for a manager to make such comments to an employee? Yes.

    Particularly in the realm of a performance evaluation, the behavior seems questionable at best? I see nothing remotely questionable about the comments the manager made. The manager was expressing a concern about the employee's state of health and possible dissatisfaction with his or her job ("you look unhappy".) There's nothing inappropriate or illegal about that.
  • 06-29-2012, 12:30 PM
    Novice
    Re: Manager Commenting About Employee's Physical Appearance During Job Evaluations
    LawResearcherMissy,

    I'm sorry, but no - Eerelations did not explain that at all

    Quote:

    Quoting eerelations
    View Post
    I'm not a doctor, nowhere near, and I can identify people who look too thin at 50 yards - even without my glasses on! And there are no laws out there that would prevent me from telling these people that they look too thin to me.

    I asked a question about comments made during a performance review. You gave an answer about tabloids and Snooki, and Eerelations gave an answer about observing people from 50 yards away.

    I thank you for your clarifications now.
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