Why looks are the last bastion of
discrimination
!
By Deborah L. Rhode
Published: Sunday, May 23, 2010
In the 19th century, many American cities banned public appearances by "unsightly"
individuals. A Chicago ordinance was typical: "Any person who is diseased, maimed,
mutilated, or in any way deformed, so as to be an unsightly or disgusting subject . . . shall
not . . . expose himself to public view, under the penalty of a fine of $1 for each offense."
Although the government is no longer in the business of enforcing such discrimination, it
still allows businesses, schools and other organizations to indulge their own prejudices.
Over the past half-century, the United States has expanded protections against
discrimination to include race, religion, sex, age, disability and, in a growing number of
jurisdictions, sexual orientation. Yet bias based on appearance remains perfectly
permissible in all but one state and six cities and counties. Across the rest of the country,
looks are the last bastion of acceptable bigotry.
We all know that appearance matters, but the price of prejudice can be steeper than we
often assume. In Texas in 1994, an obese woman was rejected for a job as a bus driver
when a company doctor assumed she was not up to the task after watching her, in his
words, "waddling down the hall." He did not perform any agility tests to determine
whether she was, as the company would later claim, unfit to evacuate the bus in the event
of an accident.
In New Jersey in 2005, one of the Borgata Hotel Casino's "Borgata babe" cocktail
waitresses went from a Size 4 to a Size 6 because of a thyroid condition. When the
waitress, whose contract required her to keep an "an hourglass figure" that was "height
and weight appropriate," requested a larger uniform, she was turned down. "Borgata
babes don't go up in size," she was told. (Unless, the waitress noted, they have breast
implants, which the casino happily accommodated with paid medical leave and a bigger
bustier.)
And in California in 2001, Jennifer Portnick, a 240-pound aerobics instructor, was denied
a franchise by Jazzercise, a national fitness chain. Jazzercise explained that its image
demanded instructors who are "fit" and "toned." But Portnick was both: She worked out
six days a week, taught back-to-back classes and had no shortage of willing students.
Such cases are common. In a survey by the National Association to Advance Fat
Acceptance, 62 percent of its overweight female members and 42 percent of its
overweight male members said they had been turned down for a job because of their
weight.
And it isn't just weight that's at issue; it's appearance overall. According to a national poll
by the Employment Law Alliance in 2005, 16 percent of workers reported being victims
of appearance discrimination more generally -- a figure comparable to the percentage
who in other surveys say they have experienced sex or race discrimination.
Conventional wisdom holds that beauty is in the eye of the beholder, but most beholders
tend to agree on what is beautiful. A number of researchers have independently found
that, when people are asked to rate an individual's attractiveness, their responses are quite
consistent, even across race, sex, age, class and cultural background. Facial symmetry
and unblemished skin are universally admired. Men get a bump for height, women are
favored if they have hourglass figures, and racial minorities get points for light skin color,
European facial characteristics and conventionally "white" hairstyles.
Yale's Kelly Brownell and Rebecca Puhl and Harvard's Nancy Etcoff have each reviewed
hundreds of studies on the impact of appearance. Etcoff finds that unattractive people are
less likely than their attractive peers to be viewed as intelligent, likable and good.
Brownell and Puhl have documented that overweight individuals consistently suffer
disadvantages at school, at work and beyond.
Among the key findings of a quarter-century's worth of research: Unattractive people are
less likely to be hired and promoted, and they earn lower salaries, even in fields in which
looks have no obvious relationship to professional duties. (In one study, economists Jeff
Biddle and Daniel Hamermesh estimated that for lawyers, such prejudice can translate to
a pay cut of as much as 12 percent.) When researchers ask people to evaluate written
essays, the same material receives lower ratings for ideas, style and creativity when an
accompanying photograph shows a less attractive author. Good-looking professors get
better course evaluations from students; teachers in turn rate good-looking students as
more intelligent.
Not even justice is blind. In studies that simulate legal proceedings, unattractive plaintiffs
receive lower damage awards. And in a study released this month, Stephen Ceci and
Justin Gunnell, two researchers at Cornell University, gave students case studies
involving real criminal defendants and asked them to come to a verdict and a punishment
for each. The students gave unattractive defendants prison sentences that were, on
average, 22 months longer than those they gave to attractive defendants.
Just like racial or gender discrimination, discrimination based on irrelevant physical
characteristics reinforces invidious stereotypes and undermines equal-opportunity
principles based on merit and performance. And when grooming choices come into play,
such bias can also restrict personal freedom.
Consider Nikki Youngblood, a lesbian who in 2001 was denied a photo in her Tampa
high school yearbook because she would not pose in a scoop-necked dress. Youngblood
was "not a rebellious kid," her lawyer explained. "She simply wanted to appear in her
yearbook as herself, not as a fluffed-up stereotype of what school administrators thought
she should look like." Furthermore, many grooming codes sexualize the workplace and
jeopardize employees' health. The weight restrictions at the Borgata, for example,
reportedly contributed to eating disorders among its waitresses.
Appearance-related bias also exacerbates disadvantages based on gender, race, ethnicity,
age, sexual orientation and class. Prevailing beauty standards penalize people who lack
the time and money to invest in their appearance. And weight discrimination, in
particular, imposes special costs on people who live in communities with shortages of
healthy food options and exercise facilities.
So why not simply ban discrimination based on appearance?
Employers often argue that attractiveness is job-related; their workers' appearance, they
say, can affect the company's image and its profitability. In this way, the Borgata blamed
its weight limits on market demands. Customers, according to a spokesperson, like being
served by an attractive waitress. The same assumption presumably motivated the L'Oreal
executive who was sued for sex discrimination in 2003 after allegedly ordering a store
manager to fire a salesperson who was not "hot" enough.
Such practices can violate the law if they disproportionately exclude groups protected by
civil rights statutes -- hence the sex discrimination suit. Abercrombie & Fitch's notorious
efforts to project what it called a "classic American" look led to a race discrimination
settlement on behalf of minority job-seekers who said they were turned down for
positions on the sales floor. But unless the victims of appearance bias belong to groups
already protected by civil rights laws, they have no legal remedy.
As the history of civil rights legislation suggests, customer preferences should not be a
defense for prejudice. During the early civil rights era, employers in the South often
argued that hiring African Americans would be financially ruinous; white customers, they
said, would take their business elsewhere. In rejecting this logic, Congress and the courts
recognized that customer preferences often reflect and reinforce precisely the attitudes
that society is seeking to eliminate. Over the decades, we've seen that the most effective
way of combating prejudice is to deprive people of the option to indulge it.
Similarly, during the 1960s and 1970s, major airlines argued that the male business
travelers who dominated their customer ranks preferred attractive female flight
attendants. According to the airlines, that made sex a bona fide occupational qualification
and exempted them from anti-discrimination requirements. But the courts reasoned that
only if sexual allure were the "essence" of a job should employers be allowed to select
workers on that basis. Since airplanes were not flying bordellos, it was time to start hiring
men.
Opponents of a ban on appearance-based discrimination also warn that it would trivialize
other, more serious forms of bias. After all, if the goal is a level playing field, why draw
the line at looks? "By the time you've finished preventing discrimination against the ugly,
the short, the skinny, the bald, the knobbly-kneed, the flat-chested, and the stupid,"
Andrew Sullivan wrote in the London Sunday Times in 1999, "you're living in a
totalitarian state." Yet intelligence and civility are generally related to job performance in
a way that appearance isn't.
We also have enough experience with prohibitions on appearance discrimination to
challenge opponents' arguments. Already, one state (Michigan) and six local jurisdictions
(the District of Columbia; Howard County, Md.; San Francisco; Santa Cruz, Calif.;
Madison, Wis.; and Urbana, Ill.) have banned such discrimination. Some of these laws
date back to the 1970s and 1980s, while some are more recent; some cover height and
weight only, while others cover looks broadly; but all make exceptions for reasonable
business needs.
Such bans have not produced a barrage of loony litigation or an erosion of support for
civil rights remedies generally. These cities and counties each receive between zero and
nine complaints a year, while the entire state of Michigan totals about 30, with fewer than
one a year ending up in court.
Although the laws are unevenly enforced, they have had a positive effect by publicizing
and remedying the worst abuses. Because Portnick, the aerobics instructor turned away
by Jazzercise, lived in San Francisco, she was able to bring a claim against the company.
After a wave of sympathetic media coverage, Jazzercise changed its policy.
This is not to overstate the power of legal remedies. Given the stigma attached to
unattractiveness, few will want to claim that status in public litigation. And in the vast
majority of cases, the cost of filing suit and the difficulty of proving discrimination are
likely to be prohibitive. But stricter anti-discrimination laws could play a modest role in
advancing healthier and more inclusive ideals of attractiveness. At the very least, such
laws could reflect our principles of equal opportunity and raise our collective
consciousness when we fall short.
Deborah L. Rhode is a Stanford University law professor and the author of "The Beauty
Bias: The Injustice of Appearance in Life and Law."
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