Cheat Sheet: What in-house counsel need to know about “beauty bias”

Hiring or promoting employees based on attractiveness could land companies in hot water

Earlier this year several Boston media outlets reported that the Equal Employment Opportunity Commission (EEOC) had launched an investigation into Marylou’s Coffee, a popular East Coast coffee shop chain known for hiring attractive female baristas.

What are the facts?

What is “beauty bias”?

What is the legal status of personal appearance?
Although the federal government does not recognize physical attractiveness (or unattractiveness) as a protected category, Michigan prohibits discrimination based on weight and height and Washington D.C. has made “personal appearance” a protected category under its anti-discrimination law.

What effect would federal recognition have on beauty bias cases? James McDonald, a partner at Fisher & Phillips, believes that the number of unjust discrimination claims would rise. But Deborah Rhode says that current laws have had little effect on the number of complaints, and that federal legislation would likely “raise consciousness and deter employers from making irrelevant characteristics the basis of decisions.”

What does the investigation mean for general counsel?
Past beauty bias cases have focused less on physical attractiveness and more on other aspects of a complainant’s appearance, namely age, race or sex. In Diaz v. Pan American World Airways, for example, the 5th Circuit ruled that the airline’s practice of hiring attractive young women as flight attendants was illegal, as being female was not a “bona fide occupational qualification” for being a flight attendant.

According to Carol Miaskoff, the EEOC’s assistant legal counsel for Title VII, there is often a fine line between discrimination based on attractiveness and discrimination based on other protected categories. “If someone grew up in a culture where they never saw people wearing certain religious garb, and therefore doesn’t find it attractive, he could slip into not hiring people wearing that clothing,” she notes. “And that would be exclusion on the basis of religion.”

Alanna Byrne

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