When the "Cool" Look Is Illegal

Forbes , November 26, 2000

FROM MANHATTAN'S TRENDY NEW HUDSON HOTEL to the Westin chain's pristinely white "heavenly beds," hotel design is hot. It's as indicative of the burgeoning esthetic economy as candy-colored iMacs and Michael Graves toasters. Hotel style has become both a competitive weapon and a cultural marker.

Instead of just providing places to sleep, hotels are establishing consistent environments tailored to customers' specific tastes. Do you want the predictability of Marriott's all-the-same rooms? The clubby, masculine pinstripes of Sheraton's new style? A one-of-a-kind boutique? The right "look and feel" creates the comfort—or excitement—to attract and retain a particular slice of the traveling public.

All of which is fine for furniture. But what about the hotel staff? They're as much a part of the atmosphere as the grain of the tables or the beat of the lobby music. But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble.

For starters, employees also take their personal style more seriously these days—and that may conflict with hotel standards. In May, for instance, an African-American cashier at the Williamsburg Inn came to work with a new hair color. The hotel calls it "flaming metallic orange-gold"; her union says it was just plain blonde. The boss told her to change it, under a company policy that requires that dye jobs be "natural looking." (The hotel is part of Colonial Williamsburg, but the cashier job doesn't require colonial costume.) The union held a press conference and charged racial discrimination.

The upshot: bad press, but no legal action. Courts generally let employers dictate employee style, as long as the rules stick to "mutable" traits, such as hair color or dress, and are reasonably objective.

But controlling style is a matter of nuance, and hence hard to define. Consider the case of the Mondrian Hotel in Los Angeles. After celebrity hotelier Ian Schrager took over the property, his new management fired the bellhops and hired a new "cool-looking" crew. All the new staff were white, compared with only one of the fired employees. The Equal Employment Opportunity Commission filed a suit, which was settled in August. The hotel is paying each of the nine former bellmen $120,000 and has hired a new personnel manager to guard against future problems.

"Coolness" is too vague and subjective to pass muster as a business necessity. "There's no consensus whatsoever on what 'cool' looks like," says Michael S. Mitchell, an employment lawyer in New Orleans and editor of the newsletter Hospitality Workforce Trends. "It not only varies from person to person, it varies from day to day."

Of course, anyone who knows anything about popular culture knows that "cool" comes in all colors. What if the hotel had fired its old bellmen but hired a multiethnic staff? No good. "It would also have to be multiage," says Mitchell. "If you think cool means young folks, you've got a problem." The law forbids not just race and sex discrimination but age discrimination, too.

Other experts go further. Donna Harper, the EEOC's acting assistant general counsel in the Mondrian case, warns that hiring only the "lithe" or "athletic-looking" would violate the Americans With Disabilities Act, which also protects anyone with "a limb impairment, or a facial impairment or a disfigurement." Looking for the right body type might constitute racial discrimination, she says, because you'd screen out "people whose body types for anthropological reasons related to race and nationality are never going to fit your ideal."

"It's one thing to have to have somebody who's slender and athletic and young-looking playing Tinkerbell in a Broadway production of Peter Pan," says Harper. "It's something entirely different if the job is to wait on tables, or if the essence of the job is to carry bags, or to check people in and make sure to get the correct information and assign the correct room."

In this view, how individual employees look is irrelevant. We live in an age when style is strategy and hotels have "casting directors." The first step in good design may soon be hiring the right lawyers.