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.

Vincent Cino

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