Labor: Beauty Bias and the Limits of the Law

An article published in Newsweek this summer reminded us of the age-old "beauty bias" and the role such bias may play in the workplace. According to the article, "[I]n the current economy, when employers have more hiring options than ever, looks... aren't just important; they're critical." [Jessica Bennett, The Beauty Advantage, Newsweek, July 19, 2010.] A few months earlier, Deborah L. Rhode, a Stanford law professor, published a book entitledThe Beauty Bias, in which she asserts that the law should play a role in addressing appearance discrimination in the workplace.

From an employment law point of view, while the "beauty bias" may be unfair, except for a handful of specific laws in a few jurisdictions, it is not illegal. Employers may make hiring, promotion, termination and compensation decisions based upon any factor--whether conscious or subconscious--so long as the factor is not one prohibited by Federal or state law. Thus, just as an employer may hire someone because that person is more outgoing than another applicant, so, too, can an employer hire a job applicant who is more attractive than his or her competitors.

Despite this basic rule, in some cases, attractiveness may overlap with certain protected characteristics. For instance, if an employer decides to hire a slim, attractive 25 year old instead of an overweight 50 year old, is it age or attractiveness that may have motivated the employer's decision? When is a physical impairment that mars a job applicant's appearance a disability? Does an attractive woman who claims she was passed over for a high-level position because of her good looks have a potential claim for gender discrimination?

In all of these scenarios, the plaintiff would have to make out a case of discrimination under one of the established protected categories: Race, color, sex, religion, national origin, age and disability. The job applicant with a physical impairment, for example, would only have a case if his or her impairment constitutes a disability under the American with Disabilities Act.

Though some argue the law should protect against appearance discrimination, such a law would be very difficult to adjudicate. Do we really want courts responsible for defining objective standards of beauty? Is it really beneficial for plaintiffs to put their unattractiveness on trial?

The nation's anti-discrimination laws are designed to eradicate specific forms of prejudice in the workplace; they are not designed to make corporations--and the people who compose those organizations--into super humans. The "beauty bias" in employment can only be put to an end if society itself decides to place less emphasis on appearance.

Vincent A. Cino is a partner in the Morristown, N.J., office of Jackson Lewis LLP. He is the firm's National Director of Litigation.

Vincent Cino

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