“Foreign and Chinese Beauties and Hunks” – OK For Job Ads?

Maybe in China. Or even in the US.

Both countries prohibit job discrimination based on gender and age, but not, as we shall see, based on looks or beauty per se. So, is a job ad for software engineers which boasts of employing “foreign and Chinese beauties and hunks” discriminatory?

Or an ad which states that applicants must “have presentable facial features” and notes that the company employs “good-looking men and women?”

These ads – only a few from among thousands – were taken from China’s two largest job websites by Bloomberg. A Human Rights Watch researcher said that “Chinese tech companies are falling behind western peers and need better awareness of equal opportunity and more clearly defined policies banning discrimination. Discriminatory practices can be even worse at smaller companies because they lack the scrutiny that publicly traded companies are under.”

Bloomberg cited the work of Catherine Hakim, a research fellow at Civitas, a London think tank and author of “Honey Money: Why Attractiveness is the Key to Success,” in noting that “the #Metoo movement hasn’t changed the significance that people place on looks when it comes to hiring, promotions and daily interactions at work. Attractive men and women earn about 20 percent more than others, on average.”

So, are these ads discriminatory?

“Beauty Bias” or “Lookism”

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?

Numerous published studies have confirmed that attractive employees – both male and female – will earn more over a career than less attractive ones. 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 while ago I quoted a Missouri labor official who 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).”

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

I wrote some time ago 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?

Newsweek reported 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%.”

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.”

Then there was an article in The Economist which reported that in China – remember China at the start of this post? – 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.”

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]