Lookism Discrimination

Cheerleaders in uniformA friend asked me the other day, “How is it that Hooters can discriminate based on looks?”

This question sparked an entire conversation about businesses, such as bikini barista stands, and professions, such as NFL cheerleaders, that obviously discriminate based on looks, and why and when that is permitted under the law.

Do good looking people have an advantage in the job market?  Do they ever have a disadvantage?  Does it violate Title VII protections to discriminate against someone based on their looks?

Is it illegal to discriminate against someone based on their looks?

The answer to this is neither simple nor clear cut.

Discrimination and protected classes are defined in Title VII of the Civil Rights Act, and also in Washington State law.  Neither of them specifically provide a protection based on looks.  In fact, there are only a very few states or municipalities that have what some have deemed an “ugly ordinance.”  Santa Cruz, San Francisco, Michigan and the District of Columbia all prohibit discrimination based on appearance or height and weight.

There are some aspects, however, of Title VII that can extend protections based on appearance.  For instance, national origin discrimination includes discriminating against someone based on the physical characteristics of a national origin group.  If a business is hiring beautiful women for a particular job, and decides that only Caucasian blondes fit the bill, they may very well have a discrimination claim filed against them.

It’s also possible to run afoul of the American’s with Disabilities Act.  Obesity, for instance, may very well fall under the ADA, depending on its cause.  Disfigurement and other disabilities that may cause an employee or job seeker to appear “unattractive” may also be covered under protections of the ADA.

Assuming that a business’s discrimination doesn’t violate the ADA or Title VII, can it discriminate based on appearance?

Generally, yes.

Let’s take a bikini barista stand as an example.  The business model is selling coffee by attracting customers who want to see skimpily clad pretty girls in bikinis.  Therefore, it becomes a BFOQ (bona fide occupational qualification) that employees be pretty, in good physical condition, and female.

The company can discriminate based on sex, age, and looks, but they must be able to prove that any members of the protected class they are discriminating against could not perform the job.

Would their business be successful if the bikini was worn by a grandmother, a man, or an overweight unattractive female?  Probably not, and that’s how Hooters, bikini barista stands, and NFL cheerleading squads get to discriminate based on looks.

Lookism happens all the time:

It probably won’t surprise anyone to know that every day in the workplace, appearance-based decisions are being made.

Last year, a Newsweek Magazine poll revealed that:

  • 24% of employed adults know someone who has gotten ahead at work because of their looks
  • 30% know someone who has been negatively impacted at work due to their looks
  • 78% said that overweight people have a harder time getting ahead at work.

Newsweek asked hiring managers to rate the character attributes that were important in hiring decisions, and looks ranked third, after experience and confidence, but above education.

61% of the hiring managers polled said it’s to a woman’s advantage to wear clothing at work that showed off her figure (seriously, in 2010?).

Some real life examples of lookism:

There are some cases that are frequently cited in discussions on this subject:

  • Debrahlee Lorenzana sued Citibank, alleging they fired her from her job because the clothes she wore were distracting to her male coworkers and she was “too hot”
  • Annette McConnell, who weighed 300 pounds, alleges she was terminated because her supervisor said “people don’t like buying from fat people”
  • Hooters was sued by Cassandra Smith, alleging that she was told to join a gym and “lose weight and improve her looks”

These are just a handful of the many cases that can be cited on what is being called lookism discrimination.

The issue of lookism is getting more attention:

There is increasing focus on lookism, as evidenced by the release last year of the book, Beauty Bias by Deborah Rhode.  Her premise is that lookism, whether its a preference for attractive people or discrimination against unattractive people, should be illegal discrimination.

The Journal of Social Psychology’s study showed that attractive women were discriminated against when they applied for jobs that were considered male-dominated, such as tow-truck drivers and construction workers.  On the other hand, positions that involved in-person client contact, such as sales, often involved discrimination against unattractive men and women.

Regulating lookism would be problematic:

We can probably all agree that we don’t need more laws on the books.  And if there was a law prohibiting discrimination based on looks, just how would that work?

Who would define the parameters of what is good looking and what is unattractive?  Can you imagine juries debating merits of discrimination cases and the discussions that would ensue about the plaintiff’s looks?  Would poor performing employees try to protect themselves by gaining weight or looking as homely as possible in order to fall into a protected class?

Clearly, this is a thorny and complex issue!

Conclusion:

As long as there have been employees, hiring decisions have been influenced by looks.  Many studies have been done on this, and we know that height, hair, weight, eye color, and many other factors have influenced hiring, promotions and compensation.

But smart businesses will always end up choosing the best candidate that will perform for them, and hopefully, as our world becomes more diverse, appearance will become less important.

 

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