Critics like Andrew Sullivan argue that if we legislate discrimination based on appearance, the next step will be legal protection for “small, thin, bald, sledgehammer, flat-chested and stupid.” But Rhode points out that Michigan and six other places already have laws in place against discrimination based on appearance. That didn`t lead to an explosion of frivolous costumes, she notes. In each jurisdiction, the new laws produced between zero and nine cases per year. In Michigan, about 30 discrimination lawsuits are filed each year, of which only one is litigated, on average. Unworthy cases are dealt with by the cost and burden of litigation, she says. And the legal system will have taken a symbolic step toward greater tolerance that can lead to a shift in social views, as Brown v. Board of Education (concerning racial discrimination) and Lawrence v. Texas (regarding gay rights). Of course, the problem with making discrimination based on appearance illegal is that Americans really, really like sexy girls. And as long as a sexy girl counts as a real professional qualification, there will be cocktail waitresses who will be fired for three pounds. It`s not just American men who like things this way.
In the most disturbing chapter of her book, Rhode examines the feminist movement`s complex relationship with eternal youth. The truth is that women feel good when they participate in beauty pageants. They like six-inch heels. You feel beautiful after cosmetic surgery. You can`t succeed in public life if you look old in America. Of the 16 women in the U.S. Senate, ranging in age from 46 to 74, none have gray hair. Rhode quotes one feminist icon after another who changed her mind about the evils of cosmetic surgery, hair color, and Botox the moment the sagging, graying, and wrinkles began.
However, she warned that favoring a particular physical appearance could be illegal under federal or state laws if it results in discrimination on an unlawful basis, such as race, religion, age, disability or gender. “For example, if an employer refuses to hire an older man as an account manager because they believe customers will give more business to a young woman, it is discrimination based on gender and age that is illegal,” she said. The goal of hiring should be to employ the most qualified person for a job, she noted. “Attractiveness is not an indicator of intelligence, attitude, work ethic or any other attribute that makes a worker exceptional,” she said. “An employer who hires because of its attractiveness may miss out on fantastic workers, even if they are not acting illegally.” Meet Deborah Rhode, a Stanford law professor who proposes a legal system in which discrimination based on appearance is as severe as discrimination based on sex or race. In a provocative new book, The Beauty Bias, Rhode argues for an America where discrimination based on appearance is no longer allowed. That means Hooters can`t pull her waiters because they`re too heavy, as reportedly happened last month to a waitress in Michigan who says she only received great reviews, but £132. And Abercrombie & Fitch`s senior management could not hold weekly meetings, as it would have done, where photos of its sales representatives were reviewed and adjusted for signs of eruption, weight gain, or unacceptable ethnicity. “There`s not much to see that the TV industry wants attractive personalities on air for similar reasons,” said Mark Kluger, an attorney at Kluger Healey in Florham Park, New Jersey. “However, if the same criteria for on-air talent were applied to off-air stations, there could be more legal complications depending on who can be eliminated. Ageism will likely always be a potential problem with appearance-based hiring criteria. “While it may be surprising to hear, employment discrimination based on physical attractiveness is not per se illegal under federal or state law,” said Laura Harshbarger, an attorney at Bond, Schoeneck & King in Syracuse, New York, though she noted that some cities across the country, including Madison, Wisconsin, Urbana, Illinois and Washington, D.C., DC, have laws prohibiting such discrimination.
Appearance guidelines may include features that go beyond mere attractiveness. The U.S. 11th Court of Appeals, for example, upheld an employer`s right to withdraw an offer to a candidate who refused to cut her dreadlocks, citing a nursing policy, Cohen said. “Guidelines on tattooing and jewelry are also common for employers,” she noted. “Appearance standards that regulate facial hair and style may involve religious or national discrimination, so employers need to be careful,” she said. Appearance standards can be considered a true professional qualification if they are necessary for running an employer business under certain circumstances, such as a roll of film or a fashion show, Schlein noted. Some courts have upheld standards of appearance and even weight, noted Jill Cohen, an attorney at Eckert Seamans in Princeton, New Jersey. For example, the New Jersey Court of Appeals upheld the standards for personal appearance at the Borgata Hotel Casino and Spa in Atlantic City, New Jersey.
The hotel required that certain employees, called “BorgataBabes”, not gain or lose more than 7% of their body weight, except for medical reasons. Employees were required to undergo periodic examinations. Hiring policies that favor beautiful people can be misguided, but not illegal, and all of this is compounded by a virtually unregulated beauty and food industry and rising rates of elective cosmetic surgeries. Rhode reminds us how Hillary Clinton and Sonia Sotomayor were attacked by the media for their appearance, and says it`s no surprise that Sarah Palin paid her makeup artist more than any of her staff members when she ran for vice president. NBC and Daniel Kaiser, Bélanger`s lawyer, declined to comment. Harshbarger added that a workplace that values physical attractiveness is not only fertile ground for sexual harassment, but also encourages competition among candidates on the relatively irrelevant issue of appearance. [SHRM members` questions and answers on HR: What is disparate impact and disparate treatment?] Schlein said that asking for access to social media accounts opens the door to potential issues related to race, color, religion, disability and age. “Even if the employer doesn`t really rely on the information they learn from a candidate`s social media search, it can be difficult afterwards to dispel the suggestion that they had discriminatory intent,” he noted. But the court sent the case back to a lower court to determine whether 11 of the plaintiffs had been exposed to hostile work environments as a result of the policy`s application. Some of those plaintiffs exceeded the 7 percent threshold due to medical or post-pregnancy issues, saying the weight standard led to gender-based harassment, ABC News reported. If you`re like me, you left the theater after Sex and the City 2 thinking there should be a law against an appearance-based culture where the only way for 40-year-old actresses to be paid like 40-year-old actors is to make them look and dress like the teenage girls of 40-year-old actors. You can`t even watch Sarah Jessica Parker without wanting to feed her croissants.
In other words, appearance distortion is a huge societal problem with tangible economic costs that most of us – perhaps especially women – perpetuate every time we buy a diet pill or make fun of Elena Kagan for not dressing like Miley Cyrus. This does not mean that we should not work to eliminate discrimination based on appearance. But that may mean directing long before Sex and the City 3 (“Samantha discovers the rope Depends … “) that the law will not prevent us from discriminating against overweight, aging and imperfect people, as long as it is the quality we all hate most about ourselves. Was this article helpful? SHRM offers thousands of tools, templates, and other exclusive benefits for members, including compliance updates, sample policies, expert HR advice, educational discounts, a growing online member community, and more. Join/renew now and let SHRM help you work smarter. Rhode is more persuasive when she argues that in America, discrimination against unattractive women and short men is as damaging and pervasive as prejudice based on race, gender, age, ethnicity, religion, and disability. Rhode cites research to prove her point: 11% of couples surveyed say they would abort a fetus predisposed to obesity. Students tell investigators they would rather have a spouse who is a misappropriator, drug user or shoplifter than one who is obese. The less attractive you are in America, the more likely you are to receive a longer prison sentence, lower damages, lower pay, and worse performance reviews.
You are less likely to be married and more likely to be poor. “The company imposed the same 7 percent weight gain above baseline for men and women, and so the court ruled that the weight standard was not discriminatory,” said Daniel Schlein, a New York attorney. “Because there is no known correlation between beauty and the ability to perform a job, focusing on appearance ensures a workforce that excludes a few better people, while alienating employees who risk losing their good looks over time and becoming potential plaintiffs,” Drogin said.