Legal Update: Workplace Discrimination
Monday, February 26, 2007
Tom Fudge: A lot of us wonder whether certain people get hired to choice jobs just because they're cute. Well, of course, people often are hired for this reason. We expect this when it comes to hiring movie stars or TV news anchors. But lookism happens in retail work, in clerical work, and in all sorts of other industries. One wonders whether discriminating against unattractive people is ever against the law.
- Dan Eaton, These Days legal analyst
End Song : “Empty Hands” by Karsh Kale, from the album Realize (2001)
The following background research represents the views of Dan Eaton alone and does not represent the views of KPBS
Looks matter in how successful you are in the workplace, according to legal and social science commentators, and yet the law does, and can do, nothing about it. Or can it?
Defining good looks
More than a decade ago, two economists quantified the effect that good looks have in workplace success. According to a 1994 study by University of Texas at Austin economist Daniel Hammersmesh and Michigan State economist Jeff Biddle, there is “a 7-9 percent penalty for being in the lowest 9 percent of looks among all workers and a 5 percent premium for being in the top 33 percent.” (D. Hammersmesh and J. Biddle, “Beauty and the Labor Market,” The American Economic Review, December 1994, p. 1186 (hereafter “Hammersmesh and Biddle”.) Hammesmesh and Biddle relied on research from the 1980’s to reject the idea that there is no such thing as a standard of beauty since, after all, “beauty is in the eye of the beholder.” “[W]ithin a culture at a point in time there is tremendous agreement on standards of beauty, and those standards change quite slowly.” (Hammersmesh and Biddle, p. 1172.)
The Law Generally Demurs
Even though there apparently is a definable standard of beauty, most jurisdictions in this country do not prohibit discrimination based on looks. Washington, DC is one of a few cities that prohibit discrimination based on “personal appearance.” Closer to home, Santa Cruz prohibits discrimination based on “physical characteristics” such as “a bodily condition or bodily characteristic of any person which is from birth, accident or disease, or from any natural physical development, or any event outside the control of that person. . . .” (Santa Cruz Code §9.83, discussed with other such laws in E. Adamitis, “Appearance Matters: A Proposal To Prohibit Appearance Discrimination in Employment” 75 Wash.L.Rev. 195, note 116 and accompanying text.) California’s statewide prohibition of employment discrimination has no such provision and nor does the equivalent federal law known as Title VII of the Civil Rights Act of 1964.
The reason the law has not addressed the issue except in isolated places may have to do with the inherent subjectivity of what precisely it means to be “good looking,” even if we can safely say that, as former Supreme Court Justice Potter Stewart put in a far different context, we “know it when we see it.” ( Jacobellis v. Ohio (1964) 378 U.S. 184, Stewart, J., concurring). Two commentators, writing in a libertarian journal, argued that a law barring discrimination was neither necessary nor appropriate. “The basic contours of beauty may be universal, but there may well be a greater range for what counts as good looks in the eye of the beholder than what counts as race, gender, ethnicity, age, or handicap. Even discrimination based on these categories is often difficult to establish in fact. Beauty discrimination is certainly more difficult to prove.” (L. Tietje and S. Cresap, “Is Lookism Unjust?: The Ethics of Aesthetics and Public Policy Implications” 19 Journal of Libertarian Studies 31, p. 48 (2005).)
The California Supreme Court Weighs In, But Not Quite
That does not mean that the law has ignored looks entirely when they play some role in employment decisions. In 2005, the California Supreme Court reversed summary dismissal of the claim of a former department store manager for a cosmetics company whose employment was terminated for refusing to fire a store representative whom the manager’s male superior thought was not “hot” enough. ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028). The basis of the decision, however, was not physical appearance discrimination. The Court found that the employee had claimed she had been retaliated against for resisting sex discrimination because no male subordinate had ever been fired for being unattractive. As the Court put it:
“[The employee] presented evidence that she reasonably believed that [the supervisor's] order constituted unlawful sex discrimination, because she thought the order represented the application of a different standard for female sales associates than for male sales associates. [The fired employee] stated in this regard that she had hired and supervised both male and female sales associates for a number of years, and never had been asked to fire a male sales associate because he was not sufficiently attractive. . . . Courts in other jurisdictions have uniformly held that an appearance standard that imposes more stringent appearance requirements on employees of one sex than on employees of the other sex constitutes unlawful sexual discrimination unless such differential treatment can be justified as a bona fide occupational qualification. We believe it is clear that such unjustified disparate treatment also would constitute unlawful sex discrimination under” California’s anti-discrimination law. ( Id ., p. 1044, case citations in original footnoted.
The California Supreme Court specifically did not answer whether a gender-neutral requirement that sales associates be attractive would violate the state’s employment discrimination law. ( Ibid .)
Looks Discrimination in Camoflauge?
Back in 2003, a well-known national clothing retailer with at least one store in San Diego was sued in California federal court for racial discrimination for hiring people who had “classic” American good looks that, said those who sued, did not match the natural features of the African-Americans, Asians, and Latinos who sued. (H. Fleener, Looks Sell, But Are They Worth the Cost?: How Tolerating Looks-Based Discrimination Leads To Intolerable Discrimination , 83 Wash.U.L.Q. 1295, note 6, et seq. and accompanying text. See also, S. Greenhouse, “Going for the Look, but Risking Discrimination” New York Times , July 13, 2003, p. 10.) Those who sued claimed that the store’s “Looks Policy” resulted in a virtually all-white crew on the sales floor.
No court ever definitively resolved these claims because the case settled in late 2004 for about $50 million. In an interview on National Public Radio with Tavis Smiley, however, one of the lawyers for those who sued denied that she was suing for looks-based discrimination. Instead, she insisted that the case a “simple” race discrimination case. (See Fleener, supra , at note 20.)
The Case of Television News Anchors
Several commentators have addressed whether television news anchors are appropriately judged by their employers on the basis of their looks. Certainly there have been lawsuits that have been brought by female TV anchors, but the complaints have been based on sex and age discrimination, not personal appearance as such. (See generally, A. Becker, “An Age-Old Problem” Broadcasting & Cable (October 31, 2005); K. Kirby, “Gender and the Anchor Desk” Communicator (August 1999).) In 1999, a federal jury awarded a former Hartford, Connecticut anchor $8.3 million where she claimed, among other things, that the station had told her that it had “too many women.” (“Gender and the Anchor Desk,” supra .) That case was later settled for an undisclosed amount. (S. Fybush, “The CRTC Gets Busy” North East Radio Watch (December 3, 1999).)
Perhaps the first of these cases was brought in the early 1980’s when former Kansas City, Missouri TV anchor Christine Craft sued her station in federal court for sex discrimination after it demoted her from anchor to reporter. Her central argument was that the station’s appearance standards, which they had for both sexes, “were based on stereotyped characterizations of the sexes and were applied to women more constantly and vigorously than they were applied to men.” ( Craft v. Metromedia, Inc. (8 th Cir. 1985) 766 F.2d 1205, 1210.)
A judge sided with the station on Ms. Craft’s employment discrimination claim and the Court of Appeals affirmed that decision. The trial judge and the Court of Appeals held that there was sufficient evidence that the station had applied its appearance standards evenhandedly to men and women. ( Id ., pp. 1209-1210.) That makes it different from the case against the cosmetics company decided by the California Supreme Court. The Court of Appeals went on to reverse a $325,000 jury verdict in Ms. Craft’s favor on a related fraud claim, saying that the evidence showed at worst that the station had changed its mind about whether significant steps were necessary to change Ms. Craft’s appearance to suit the conservative Kansas City television audience. Ms. Craft went on to get her law degree from a Sacramento-area school and now hosts a talk radio show in that area.
Discrimination Against Good-looking People
Some have contended that good-looking people, especially good-looking women, have problems of their own with discrimination in the workplace. A writer in the University of Southern California’s Review of Law and Women’s Studies cited research that suggests that physical attractiveness may “complicate the work setting for women. . . . Successful women’s opinions about whether their physical beauty is a help or hindrance in their careers are inconsistent. Some believe their looks are an advantage, others a disadvantage, in career success.” (M. Gehrke, “Is Beauty the Beast?” 4 S.Cal. Rev. & Women’s Stud. 221 (1994))
One Minnesota woman wrote to the state’s Human Rights Commissioner to complain that, as, in her words, “a woman who is considered exceptionally good-looking,” she had suffered discrimination in her job as an engineer. She mentioned she had once come in third place in her home state’s statewide beauty pageant. She complained that she was often passed over to give presentations at company meetings. One of her female co-workers even once said that if this woman were chosen to give the presentation, the audience would be looking at her legs instead of the charts and graphs. She wanted to know if she had any legal remedies for sex discrimination.
The Commissioner responded that there was nothing in the state’s employment discrimination that prohibits discrimination for being too beautiful. The Commissioner added, though, that there could be a claim for sex discrimination if her employer had “a different standard or expectation for the appearance of female employees, compared to males.”
Arguments that Have Been Made for Outlawing Discrimination Based on Looks
Some argue that the law does, or should, outlaw employment discrimination based on looks. Their argument starts with the idea that hiring decisions should be based on merit alone. These commentators then argue that discrimination against those who are not good-looking is not based on merits because it has nothing to do with the job. Therefore, they conclude, discrimination based on looks should be illegal. (See e.g., Note, “Facial Discrimination: Extending Handicap Law To Employment Discrimination on the Basis of Physical Appearance” 100 Harv.L.Rev. 2035 (1987); E. Adamitis, “Appearance Matters: A Proposal To Prohibit Appearance Discrimination in Employment” 75 Wash. L.Rev. 195 (2000); Fleener, supra .)
The student author of a widely discussed 1987 essay in the Harvard Law Review has gone on to suggest that existing laws prohibiting discrimination on the basis of disability may be the basis of a claim for physical appearance discrimination. The argument is that certain aspects of physical appearance that are not changeable -- or not changeable without dramatic expense and effort such as certain facial characteristics that most consider unattractive -- should be treated as a kind of disability, impairing an individual’s ability to get a job. Moreover, these commentators argue, discrimination based on looks often is a stand-in for discrimination based on race or age. As the Harvard student commentator put it: “One significant aspect of prejudice against blacks, old people, or people in wheelchairs is a negative reaction to the way they look. Conversely, people may well dislike certain appearance characteristics – such as broad noses and wrinkled skin – because they associate them with groups they disfavor.” That was essentially the argument of those who sued the retail store for racial discrimination in 2003.
These commentators say that such a case of disability discrimination based on looks could be proved on a case-by-cases with the use of experts who would be brought in to give their opinion about whether a person’s looks impair their ability to get a job. Once a finding of impairment was made, according to the Harvard student commentator, it could be combined with “an analysis of the employer’s entire hiring process, including a comparison of the abilities and appearance of applicants who were hired with those of the plaintiff, to determine whether discrimination had occurred.”
At least one commentator, however, has suggested that existing laws are inadequate. It is hard, though not impossible, to imagine someone trying to make the case – with experts that they pay -- that their unattractiveness is a physical handicap. Instead, this commentator says, there ought to be a new law that specifically makes discrimination based on immutable physical characteristics illegal. (Adamitis, supra .) This commentator concedes that “society may be unwilling to protect characteristics that are clearly mutable, voluntary, and in no way associated with some already-protected category.”
Conclusion: Is there even a Label for Discrimination Based on Looks?
Since at least since 2000, dictionary writers have indeed recognized a term for discrimination based on looks. Both the Oxford English Dictionary and the American Heritage Dictionary have included the word “lookism” in the editions published since 2000. The American Heritage Dictionary defines “lookism” as: “Discrimination or prejudice against people based on their appearance.” According to the dictionary, someone who engages in such behavior is called a “lookist.” The analogy, of course, is to the words “racism” and “racist.” The earliest publication of the word, according to one dictionary writer, was a 1978 Washington Post Magazine article. (J. Ayto, “20 th Century Words” (Oxford 1999.)
Still, the law is not the only field to resist the concept. The word processor on which this essay was prepared tagged “lookism” and “lookist” as misspelled words.
1 ( Frank v. United Airlines, Inc. (9th Cir.2000) 216 F.3d 845, 854-855; Gerdom v. Continental Airlines, Inc. (9th Cir.1982) 692 F.2d 602, 608 [in bank]; Association of Flight Attendants v. Ozark Air Lines (N.D.Ill.1979) 470 F.Supp. 1132, 1135; Laffey v. Northwest Airlines, Inc. (D.D.C.1973) 366 F.Supp. 763, 790.)
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