Yesterday, attorney Mark Schickman introduced us to the concept of “beauty bias”—a phrase coined by Stanford law professor Deborah Rhode. Today, a look at the flip side of the equation: Can an employee sue for being perceived as too attractive?
Find out below, courtesy of Schickman’s guest column. Schickman is a partner at Freeland Cooper & Foreman, LLP, in San Francisco and a member of the Employers Counsel Network.
A Law To Protect the Extremely Attractive?
As I mentioned yesterday, the state of Michigan and six localities (including Santa Cruz and San Francisco) have express laws against appearance discrimination.
These ordinances ban employment discrimination based on all ordinary categories and add a prohibition against discrimination based on “height, weight, or physical characteristics.”
While this law is designed to protect employees who are considered too short or too heavy, it could also protect people like erstwhile Citibank employee Debralee Lorenzana, whose lawsuit says she was fired because her good looks were deemed “too distracting” for the office. That dispute is reportedly now in arbitration.
Join guest columnist Mark Schickman for an in-depth webinar all about beauty bias at work—this coming Monday!
Can Laws Override a Natural Preference for Good Looks?
Can laws negate a universal predilection in favor of the physically attractive? Rhode says yes, arguing that “the most effective way of combating prejudice is to deprive people of the option to indulge in it.”
She notes that segregated schools were once the accepted norm, but that as the law changed, so did the practice. Similarly, until gay rights were codified, most Americans accepted gay discrimination.
Uncertainties behind this theory abound. Would a plaintiff have to plead and prove unattractiveness? Will “not homely enough” become a legal defense? Will discriminatory bosses who favor petite men or zaftig women get a free pass?
Will “attractiveness” be decided through the eyes of the jury or expert witnesses? Will plaintiffs’ lawyers adorn their clients in burlap and sweat suits to accentuate their plainness?
Appearances can be deceiving. Will they create a new protected class as well?
Don’t Miss Our Brand-New Beauty-Bias Webinar—Coming Monday!
Does it literally pay to be beautiful? It appears so. One study revealed that about 10 percent of male employees described as “homely” were paid about 9 percent less than the average earner. Handsome men on the other hand, received about 5 percent above the average wage earner.
Height and weight may play a role in compensation, too. A New England Journal of Medicine report indicates that short men earn $3,000 less per year than taller colleagues.
Appearance-based discrimination is a tricky area because an employer could potentially violate several laws when beauty bias is present in the workplace.
Join us this coming Monday, February 27, for an in-depth webinar all about this new litigation threat to your workplace. Mark Schickman and his colleague Cathleen Yonahara will explain:
- Where appearance-based discrimination fits into the unlawful discrimination spectrum
- Recently filed and decided cases involving allegations of appearance-based bias—how the employers landed in legal hot water and how to avoid making the same mistakes
- Best practices for enforcing a dress code and grooming policy when having employees “look good” is essential to the job
- Examples of how an obese employee could have a valid disability discrimination claim
- Harassment concerns—how appearance-based bias could foster hostile work environment claims
- The legislative outlook—Michigan and parts of California are on board with beauty bias laws; are there more to come across the country?
Don’t miss it! Sign up today. Can’t make it on Monday? No problem—order the CD and learn at your leisure.
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