We have eliminated many forms of workplace discrimination and made great strides toward erasing others. Nonetheless, one form of discrimination ― “Beauty Bias,” as coined by Stanford Law Professor Deborah Rhode ― remains alive, well, and possibly inherent in the human condition.
When babies are shown pictures of adults, they usually reach for the most attractive faces. That bias continues through life. A 1994 study showed that nine percent of working men described by observers as “homely” received nine percent less than average earnings, while 32 percent of the most “handsome” men earned five percent above the average. The most attractive women earned four percent more than average, and the least attractive earned five percent less than average. A study of law school graduates showed that after 15 years of practice, good looks added over $10,000 per year in income.
The same pattern holds true for height and weight. The heaviest 10 percent of girls holding their first jobs earned 7.5 percent less than average, while boys gained two percent in income for each four-inch difference in height. The New England Journal of Medicine agrees that short men earn $3,000 per year less than colleagues who are a foot taller.
While these patterns appear to be universal, one can be trained to mitigate them. When managers were shown four photos of women and asked to pick the one “most likely to become a Vice President,” the most attractive photo was selected by 73 percent of new managers, 65 percent of those moderately experienced, and 47 percent of highly experienced managers. With training, the bias can be minimized.
Is appearance discrimination illegal? It might violate several current laws. If you favor attractive people out of romantic desire, it could constitute sex discrimination. If your idea of “attractive” is a Caucasian face, that preference could constitute race or national origin discrimination. Antipathy toward the obese could violate disability discrimination law, and if youthful appearance attracts you in a job candidate, it could constitute actionable age discrimination.
There Ought to Be a Law?
Now the state of Michigan and six localities 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.” Santa Cruz defines “physical appearance” to include any “bodily condition or characteristics . . . outside the control of that person, including physical mannerisms.” The good news is that tattoos and piercings apparently aren’t protected by the law.
Rhode says this law will prevent nightclubs from demanding that hostesses wear makeup. It would protect people like the two Atlantic City Casino waitresses who agreed in their employment contracts to maintain a height- and-weight-appropriate hourglass figure. It should protect strong fat people seeking work in 24-hour fitness locations, eliminating what Rhode calls “the injustices of appearance.”
Conversely, the law could protect 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.
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?
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at schickman@freelandlaw.com.