The Limits to Appearance Autonomy in the Workplace: An Assessment of the Law and Recommendations for Reform in South Africa

Adam, Aisha

The Limits to Appearance Autonomy in the Workplace: An Assessment of the Law and Recommendations for Reform in South Africa

Thesis / Dissertation

2023

Abstract

Our physical appearance and how we dress and present ourselves are indicative of our personal expression and unique identity. Appearance is a fundamental aspect of an individual's sense of self and is worthy of protection. Despite this, adverse decisions are often made on the basis of appearance, and appearance may determine our advancement in the employment sphere. This thesis argues that the recognition of appearance autonomy is fundamental for the protection of dignity and that this should inform the extent to which an employer may impose standards of appearance in the workplace. Currently, in the South African context, an individual's appearance in the workplace is not an explicitly recognised ground under section 6 of the Employment Equity Act 55 of 1998 (EEA), and protection from appearance discrimination will depend on whether the impugned conduct can be based on an existing ground in the Act. Using dignity as an overarching concept, the thesis explores, through the lens of antidiscrimination law, the extent to which employers can regulate employees' appearance and the limitations that this may impose on an employee's personal autonomy. Furthermore, the thesis considers the constitutional right to privacy, as well as freedom of conscience, belief or opinion, and freedom of expression as mechanisms for protecting personal autonomy. By assessing appearance regulation using these frameworks, the thesis identifies gaps in protection. Principles of international law and developments in selected foreign law jurisdictions are considered in the thesis and inform the proposed recommendations. Focusing on developments in Australia, the USA, the United Kingdom, France and Germany, the thesis considers the extent to which these countries provide protection from appearance discrimination, and draws lessons in particular from the legislative approaches adopted in Australia, France and selected states of the USA. Having considered the difficulties in legislating appearance autonomy as a right, the thesis goes on to argue for augmenting the current regulatory framework. Specifically, the thesis recommends the explicit recognition of a right to appearance autonomy, vi proposes a definition for physical appearance, and motivates for the inclusion of physical appearance as a listed ground in anti-discrimination law. The recommendations provide a framework for protecting appearance autonomy in the workplace while recognising the legitimate interests of the employer. The proposals maintain a balanced approach to the employment relationship and clarify the limitations on appearance autonomy based on the inherent requirements of a job. Adopting the recommendations will promote substantive equality and will improve protection from intersecting forms of discrimination. Legislative developments in this regard will raise employer awareness and will advance policy formulation that protects appearance autonomy and encourages a work environment based on mutual respect and dignity. Finally, the thesis argues that the benefits of recognising and protecting appearance autonomy in the workplace outweigh concerns regarding unmeritorious and frivolous claims which should not deter the legislature from recognising and protecting appearance autonomy in the workplace.

Keywords

Commercial Law

Reference:

Collections

PhD / Doctoral

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