“Beauty Bias” – Should Looks Be A Protected Category?

I thought about “beauty bias” or “lookism” this morning, topics which I have written a lot about with respect to employment discrimination, when I read a thought provoking essay in the New York Times today entitled “Being Dishonest About Ugliness.”

Monkey, Orangutan, Animal, Face, Hair

Julia Baird writes that “Adults often tangle themselves in knots when discussing physical appearance with children. We try to iron out differences by insisting they don’t matter, attribute a greater moral fortitude to the plain or leap in defensively when someone is described as not conventionally attractive, or — worse — ugly or fat.”

She wonders whether it would not be better if children were given the truth about the role of appearance:  “So how is a child to grapple with the savage social hierarchy of ‘lookism’ that usually begins in the playground, if adults are so clumsy about it? The advantage of beauty has been long established in social science; we know now that it’s not just employers, teachers, lovers and voters who favor the aesthetically gifted, but parents, too.”

Food for thought — and grist for this blog.

I wrote recently about an employee who claimed that she was fired because she was overweight – in Michigan, the only state which prohibits discrimination based upon weight.  If weight is a prohibited criteria for hiring or firing, what about things like looks or appearance? Can an employer discriminate against the unattractive?  Is there such a thing in the law as “lookism,” or workplace bias based upon appearance – and should there be?

They say that beauty is subjective, that it is “in the eye of the beholder.”  If so, can anti-lookism be made law?

As I mentioned, I wrote a lot of posts on this topic in my blog at my old firm.  As soon as I left for greener pastures, that firm scrubbed out my name as author but luckily you can still read them under the pen name they gave to me – “Fox”:  see, e. g., October 16, 2013; July 9, 2012; February 11, 2011.

Title VII does not prohibit dress or grooming rules per se, as long as these rules do not have a “disparate impact” on, for example, employees who have religious beliefs or disability which require a certain dress or hair style.  A Missouri labor official illustrated a couple of prohibitions: “For example, a particular hair style may be a tenet of the employee’s religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer).”

Numerous published studies have confirmed that attractive employees – both male and female – will earn more over a career than less attractive ones.

Rose, Blossom, Bloom, Red Rose

Take a look at the research of law professor Deborah Rhode (60 percent of overweight women and 40 percent of overweight men report experiences of employment discrimination, and short males often get “the short end of the stick” when it comes to hiring, promotion and earnings); and economist Daniel Hamermesh (who calculated the lifetime earnings differential for an attractive man at about $250,000).

Also check out a useful bibliography by Hofstra Professor Comila Shahani-Denning, entitled Physical Attractiveness Bias in Hiring: What Is Beautiful Is Good.”

Newsweek Magazine reported some time ago that “handsome men earn, on average, 5 percent more than their less-attractive counterparts (good-looking women earn 4 percent more).”  And Time published an article which began: “A new research paper confirms that everything that your mother told you growing up is a lie because the pretty people always win.”  The article linked to a report from the Council for Contemporary Families which claims, as Time puts it: “Women with above average looks reportedly made 8% more while below-average looking women had a 4% penalization. While an attractive man earned just 4% more, men who fell below average on the looks scale were docked 13%.”

This bias is not confined to the American workplace.  I noted before that The Press from New Zealand (Press.com.nz) published an article on employment discrimination and appearance bias, with one woman, rejected for hiring 20 times in 2 months, claiming that employers are “enthusiastic” about her until “they see me in person, it all goes downhill.”

Then there was an article in The Economist which reported that in China there is a hiring “premium” for taller employees, with ads typically setting height requirements, and resumes frequently listing height and weight.  “A post as a female cleaner in Beijing is advertised to women of at least 162cm.” A study from Huazhong University of Science and Technology found that “each centimetre above the mean adds 1.5-2.2% to a woman’s salary, particularly among middle- and high-wage earners.”

Giraffe, Tall, Mammal, Africa

The issue is clear, and the studies are clear, but a workable legal definition may be quite elusive – or at least this is claimed by opponents of legislation to combat such discrimination.




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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]