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Appearance discrimination, "Lookism" and "Lookphobia" in the workplace

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Abstract

This article focuses on appearance and attractiveness discrimination in the American workplace. As such, this article discusses issues related to "lookism" and "lookphobia" as a real challenge for managers who are recruiting, attracting, interviewing, hiring, appraising, and promoting employees. The article provides a discussion of societal norms concerning "attractiveness," the existence of appearance discrimination in employment, the presence of "preferring the pretty", and then the authors examine important civil rights laws that relate to such forms of discrimination. Finally, recommendations for employers and managers are provided for fair and non-discriminatory hiring and promotional practices.
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Appearance Discrimination, “Lookism
And “Lookphobia” In The Workplace
Frank J. Cavico, Nova Southeastern University, USA
Stephen C. Muffler, Nova Southeastern University, USA
Bahaudin G. Mujtaba, Nova Southeastern University, USA
ABSTRACT
This article focuses on appearance and attractiveness discrimination in the American workplace.
As such, this article discusses issues related to “lookism” and “lookphobia” as a real chall enge
for managers who are recruiting, attracting, interviewing, hiring, appraising, and promoting
employees. The article provides a discussion of societal norms concerning “attractiveness,” the
existence of appearance discrimination in employment, the presence of “preferring the pretty”,
and then the authors examine important civil rights laws that relate to such forms of
discrimination. Finally, recommendations for employers and managers are provided for fair and
non-discriminatory hiring and promotional practices.
Keywords: Appearance Discrimination in the Workplace; Lookism; Lookphobia
INTRODUCTION
t has been said that “A fair exterior is a silent recommendation” (Publilius Syrus, circa 42 B.C.).
Furthermore, “Beauty itself doth of itself persuade the eyes of men without an orator” Said William
Shakespeare (1564-1616). As the preceding quotations indicate, appearance is part of a person’s non-
verbal communication; and appearance is tied directly to “attractiveness.” And physical attractiveness, one readily
must admit is a “prized possession” as well as an esteemed one, in U.S. society today. James (2008, p. 637) states
that “several positive qualities such as happiness and success are associated with attractiveness.” Corbett (2011, p.
629) declares that “contemporary American society celebrates and embraces physical beauty with an inexhaustible
force.” Corbett (2007, p. 153) also underscores that “at the beginning of the twenty-first century, American society
was obsessed with physical appearance....Moreover, the curvaceous became loquacious, and presumptively and
presumptuously sagacious.” Similarly, James (2008, pp. 629-30) points out that when two equally qualified women
apply for a position: “You would rather hire the applicant that you find more attractive because society taught you to
associate beauty with other favorable characteristics.” These appearance norms, and especially attractiveness, “good
looks,” and beauty, are based on and shaped by culture, cultural norms, and society and community standards
(Mahajan, 2007; Steinle, 2006). However, Mahajan (2007, p. 182) warns that “relying on culture-bound judgments
for appearance may reinforce existing prejudices and stereotypes. Such judgments have less to do with the
importance of…appearance to individuals or employers and more to do with society’s…appearance expectations.”
Nevertheless, Corbett (2011, p. 625) states that “society’s affinity for beauty seems to have real economic
consequences for people.”
Accordingly, when it comes to business, one is reminded of the old adage: “Soap doesn’t sell, sex sells.”
Clearly, U.S. society is concerned with appearance, attractiveness, “good looks,” and sexiness; and thus so is
business (Mujtaba, 2010). Mahajan (2007, p. 166) asserts that “our society is obsessed with appearance.” Corbett
(2007, p. 157) concurs: “Appearance matters in our society today more than it ever has before.” Corbett (2011, p.
625) further declares that “indeed, contemporary society seems to be utterly and completely obsessed with physical
attractiveness.” In a business context, employers often make hiring decisions based on the appearance and
attractiveness of the job applicants. James (2008, p. 229) indicates that “…outward appearance plays a significant
role in everyday life. Magazines and television programs that illustrate America’s obsession with appearance
overrun society. Consequently, employers realize that looks do matter, and their hiring decisions reflect this simple
I
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fact.” Corbett (2007, p. 157) also points out that in an appearance-based society such as the U.S. today, “…many
employers care very much about the physical appearance of their employees, and some make employment decisions
based, at least in part, on the physical appearance of employees and applicants.” Steinle (2006, pp. 262-63)
emphasizes that “the commercial appeal of ‘cool, yet seductive, teenage sales associates, ‘hot’ women at cosmetics
and lingerie counters, and waitresses who resemble ‘scantily clad Barbie doll(s)’ is clear.” Mahajan (2007, pp. 169-
70) concurs, emphasizing: “From an economic standpoint, employers have incentive to hire based on physical
appearance.” Physically attractive job applicants apparently benefit financially from this incentive since according
to Daniel Hamermesh, an economist at the University of Texas, over a lifetime and assuming today’s mean wages,
“attractive” American workers on average make $230,000 more than their very plain-looking co-workers
(Hamermesh 2011, p.47).
Just as appearance affects an employer’s judgment about the qualifications of a particular employee, so
does it affect a customer’s perception of the company and its products or services (Cavico, Muffler, and Mujtaba,
2012). Thus many employers use appearance-based hiring as a marketing technique.” To illustrate the point that
“looks do indeed matter” in the employment context, James (2008, pp. 636-37) relates that the ABC television news
show “…20/20 conducted an experiment in which two women with virtually identical resumes and behaviors
applied for the same job. Not surprisingly, the interviewer was friendlier to the more attractive applicant and
extended the job offer to her; whereas, the less attractive applicant never even received a return phone call.” Corbett
(2007, p. 154) relates that “clothing stores were hiring young, shapely, beautiful people who had ‘the look’ to be
sales associates. Bars and restaurants were hiring pretty people.” To illustrate, the Miami Herald (Greenhouse, 2003)
reported on a steadily growing trend in retailing; that is, many companies, for example, Abercrombie & Fitch, the
Gap, cosmetics company L’Oreal, and the W hotel chain, are taking an aggressive approach to develop an attractive
sales force; and as such they are openly seeking workers who are pretty, handsome, good-looking, and sexy.
Greenhouse (2003, p. 21A) quoted the Abercrombie communications director who said that his company preferred
to hire sales assistants, who are known as “brand representatives,” who “looked great” and who will serve as
“ambassadors” for the brand. Abercrombie has had the brand of the “classic American” and “preppy” look and style,
which, as will be seen, could be problematic if the company preferred young, white, blond-haired, blue-eyed
applicants but discriminated against black applicants. In fact, Greenhouse (2003) extolled the Gap as well as
Benetton since these companies pride themselves on hiring attractive people, but people from many different
backgrounds and races.
Evidently, appearances do matter in U.S. society today; and physical appearance, particularly in the sense
of “attractiveness,” is highly favored by society. Employers, therefore, in order to survive, let alone prosper, in a
very competitive and difficult economy, as well as in a society which places a premium on “good looks, very well
might take steps to build an “attractive,” and concomitantly marketable, image, brand, or culture. Preferring
employees who are deemed to be attractive, and consequently discriminating against those deemed to be
unattractive, is one way to achieve this business objective. Accordingly, a fundamental question arises: Is such
discrimination in employment based on personal appearance, particularly on attractiveness, illegal under civil rights
laws in the United States or is favoring a worker’s physical beauty a legitimate, strategic marketing tool in the ever
increasingly competitive “at will” employment marketplace.
EMPLOYMENT AT-WILL DOCTRINE
The employment at-will doctrine is a fundamental principle of employment law in the United States. The
doctrine holds that if an employee is an employee at-will, that is, one who does not have any contractual provisions
limiting the circumstances under which the employee can be discharged, then the employee can be terminated for
any reason good, bad, or morally wrong, or no reason at all and without any warning, notice, or explanation
(Corbett, 2011, Cavico and Mujtaba, 2008). As emphasized by Corbett (2011, p. 623) this doctrine will emerge as
“particularly problematic for victims of appearance-based discrimination in proving their claims.” The employment
at-will doctrine can engender a legal but immoral discharge, but not an illegal discharge, that is, one that is in
violation of some other legal provision, the prime example being the Civil Rights Act of 1964. Corbett (2011, 2007)
raises the concern that including physical appearance as part of civil rights laws would make too much of an inroad
into the traditional employment at-will doctrine and the employer’s concomitant freedom to manage its workforce.
Corbett (2007, p. 173) explains: “The less cohesive and identifiable (and the more amorphous) a group characteristic
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is, the more it arguably intrudes on the freedom of employers to make decisions without fear of liability for violating
an employment discrimination law. Consider an employer contemplating firing an employee. The employer may
want to know whether it is likely it will be sued and incur substantial costs in defending an employee discrimination
lawsuit. For race, color, sex, and to some extent national origin, the employer can observe or discern the potential
plaintiff’s characteristics.” Nonetheless, Corbett (2011, p. 658) concludes that “although most people in the United
States think that it is unfair to terminate an employee based on her physical appearance, the basic premise of U.S.
employment law employment at will permits such a termination.” Accordingly, if an employee is an employee
at-will, and the employee is discharged for his or her appearance, the employee will have no recourse under the
traditional employment at-will doctrine. The employee may have a valid wrongful discharge case only if he or she
can directly link the appearance-based discrimination to one of the protected categories, also called protected
characteristics, pursuant to civil rights laws.
CIVIL RIGHTS LAWS
Civil rights laws in the United States make it illegal for an employer to discriminate against an employee or
job applicant because of a person’s race, color, religion, sex, national origin, age (40 or older), and disability (Equal
Employment Opportunity Commission, Prohibited Employment Policies/Practices, 2011). Civil rights laws are
enforced in the United States primarily by the federal government regulatory agency the Equal Employment
Opportunity Commission (EEOC). Congress has delegated to the EEOC the power to interpret, administer, and
enforce Title VII of the Civil Rights Act of 1964. The EEOC is permitted to bring a lawsuit on behalf of an
aggrieved employee, or the aggrieved employee may bring a suit himself or herself for legal or equitable relief
However, Stoter (2008) points out that Congress only empowered the EEOC to institute a lawsuit against employers
who engaged in a “pattern or practice” of discrimination; and as a result, the private cause of action allowed in Title
VII became an instrumental component in employment anti-discrimination law and practice (pp. 601-02).
Individual actions can be filed by workers, but only after they conform to strict pre-suit procedures which include
filing their initial administrative complaint with the EEOC and “706” corresponding state agency. The Civil Rights
Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA),
it must be stressed, are federal, that is, national laws. Since the U.S. is a federal system, it accordingly must be noted
that almost all states in the U.S. have some type of anti-discrimination law law which may provide more protection
to an aggrieved employee than the federal law does.
The Civil Rights Act allows any person who is aggrieved by a violation of the statute to institute a civil
action in any court of competent jurisdiction for any and all legal redress which will effectuate the purposes of the
statute. However, a plaintiff must first fulfill certain administrative prerequisites (Lynch, 2006, pp. 70-73). When the
EEOC finds “reasonable cause,” the agency grants the aggrieved party a “right-to-sue” letter which allows the
employee to proceed to the federal courts (Lynch, 2006 pp. 71-73). Moreover, it should be noted that normally
individuals who feel they have been discriminated against in the workplace have 180 days to file a complaint with
the EEOC and their state’s corresponding “706 agency,” which is the individual state’s administrative agency
charged with investigating allegations of discrimination in the workplace, such as the State of Florida’s Co mmission
on Human Relations or the Texas Workforce Commission. Thereafter, aggrieved parties have 90 days to file their
lawsuit when their “right to sue” letter is received. Failing to follow these pre-suit procedures can result in a
dismissal of the future federal court action as well as separate specific state antidiscrimination lawsuits (Olivarez v.
University of Texas at Austin, 2009) In certain circumstances, these strict deadlines can be satisfied by either a work
sharing agreement between the EEOC and local 706 agency, or “relation back” theories of tagging along additional
discrimination claims after the filing of the lawsuit, such as was the case in Ivey v. District of Columbia (2008). In
Ivey, the work sharing agreement between the federal and local agency expanded the 180 day deadline to 300 days,
and the plaintiff’s allegations of discrimination based on “personal appearance” related back to the original filing,
although the claim was under an additional separate theory of recovery sounding in the violation of the District of
Columbia’s Human Rights Act.
The EEOC itself actually may go to court on behalf of the complaining employee, or the employee may
also choose to be represented by private legal counsel. Regardless, in either situation, the prima facie case is the
required initial case that a plaintiff employee asserting discrimination must establish. Basically, prima facie means
the presentment of evidence which if left unexplained or not contradicted would establish the facts alleged.
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Generally, in the context of discrimination, the plaintiff employee must show that: 1) he or she is in a class protected
by the statute; 2) the plaintiff applied for and was qualified for a position or promotion for which the employer was
seeking applicants; 3) the plaintiff suffered an adverse employment action, for example, the plaintiff was rejected or
demoted despite being qualified, or despite the fact that the plaintiff was performing his or her job at a level that met
the employer’s legitimate expectations; 4) after the plaintiff’s rejection or discharge or demotion, the position
remained open and the employer continued to seek applicants from people with the plaintiff’s qualifications. These
elements, if present, give rise to an inference of discrimination. The burden of proof and persuasion is on the
plaintiff employee to establish the prima facie case of discrimination by a preponderance of the evidence (Gul-E-
Rana Mirza v. The Neiman Marcus Group, Inc., 2009). Regarding the employment relationship, the most important
statute on the federal level in the United States is Title VII of the Civil Rights Act of 1964.
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
The Civil Rights Act of 1964 is of prime importance to all employers, managers, employees, job applicants,
and legal professionals in the United States. This statute prohibits discrimination by employers, labor organizations,
and employment agencies on the basis of race, color, sex, religion, and national origin (Civil Rights Act, 42 U.S.C.
Section 2000-e-2(a)(1)). Regarding employment, found in Title VII of the statute, the scope of the statutory legal
provision is very broad, encompassing hiring, apprenticeships, promotion, training, transfer, compensation, and
discharge, as well as any other “terms or conditions” and “privileges” of employment. The Act applies to both the
private and public sectors, including state and local governments and their subdivisions, agencies, and departments.
An employer subject to this act is one who has 15 or more employees for each working day in each of 20 or more
calendar weeks in the current or preceding calendar year (42 U.S.C. Section 2000e(b)). One of the principal
purposes of the Act is to eliminate job discrimination in employment (Cavico and Mujtaba, 2008). This Act was
amended in 1991 to allow for punitive damage awards against private employers as a possible remedy (Civil Rights
Act of 1991, Public Law 102-166, as enacted on November 21, 1991). This amendment gives employers even more
incentive to conform their workplace employment policies to the law and thus to avoid potential costly liability in
this area of employment law. Liability pursuant to the Civil Rights Act can be premised on two important legal
theories disparate treatment and disparate impact.
Disparate Treatment v. Disparate Impact Theories
There are two important types of employment discrimination claims against employers involving the
hiring, promotion, or discharge of employees disparate treatment and disparate (or adverse) impact that initially
must be addressed. “Disparate treatment” involves an employer who intentionally treats applicants or employees less
favorably than others based on one of the protected classes of color, race, sex, religion, national origin, age, or
disability (Cavico and Mujtaba, 2009). The discrimination against the employee is willful, intentional, and
purposeful; and thus the employee needs to produce evidence of the employer’s specific intent to discriminate.
However, intent to discriminate can be inferred. So, for example, when the employee is a member of a protected
class, such as a racial minority, and is qualified for a position or promotion, and is rejected by the employer while
the position remains open, and the employer continues to seek applicants, then an initial or prima facie case of
discrimination can be sustained (Cavico and Mujtaba, 2008). The “disparate treatment” doctrine was articulated by
the U.S. Supreme Court case of McDonnell Douglas Corp. v. Green (1973) and modified by Community Affairs v.
Burdine (1981) and St. Mary's Honor Center v. Hicks (1993). The analysis for a “disparate treatment” claim
involves a shifting burden of proof as follows: (1) first, the complainant must put forth credible evidence to establish
a prima facie case of discrimination; (2) then if such evidence is established, the defendant employer must next
articulate, through admissible evidence, a legitimate, non-discriminatory explanation or reason, such as a business
necessity, for its actions; and finally (3) the burden shifts to the plaintiff employee to establish that the employer's
proffered reason was merely a pretext to hide discrimination (Cavico and Mujtaba, 2008; Mahajan, 2007;
McDonnell Douglas, 1973, pp. 802-04; Burdine, 1981, pp. 252-56). If the plaintiff employee cannot offer any
evidence to show that the defendant employer’s articulated, facially neutral reason for the termination was a fake
one and a subterfuge to mask discriminatory intent, the employee’s case cannot be sustained (Cavico and Mujtaba,
2008).
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Accordingly, “burden-shifting” typically arises in a discrimination case when the plaintiff utilizes the
disparate treatment legal theory. That is, the plaintiff, the allegedly aggrieved employee, is arguing that his or her
employer intentionally discriminated against him or her because of a protected characteristic, such as age pursuant to
the Age Discrimination in Employment Act or race pursuant to Title VII of the Civil Rights Act of 1964. In order to
sustain his or her initial burden of proof, the plaintiff must introduce evidence that the employer intended to
discriminate against the employee, who thereby suffered an adverse employment action, due to the employee’s age
or race or other protected characteristic. The evidence the employee can offer can be direct evidence of
discrimination, such as an express comment indicating a bias against older or minority workers, or circumstantial,
such as a comment that an employee is “over-qualified” which can be the basis of an inference of a discriminatory
animus based on age. Once the plaintiff establishes this initial or prima facie case, the burden then shifts to the
employer to present a legitimate, bona fide, and non-discriminatory reason for the adverse employment action. Next,
if the employer can meet this burden, then the burden shifts back to the plaintiff employee to demonstrate that the
purportedly legitimate reason offered by the employer is in fact fake and a mere pretext for an underlying
discriminatory motive (Cavico and Mujtaba, 2008; Mahajan, 2007). Regarding disparate treatment in the context of
sex discrimination, Steinle (2006, pp. 277-78) explains that “members of one sex must establish that they have been
treated differently from comparators of the opposite sex by being saddled with calculable unequal burdens in
conforming to an employer’s standards.” However, Majajan (2007, p. 178) counsels that “…because appearance
policies are often based on unconscious biases, a plaintiff will be unlikely to satisfy her burden of proof since intent
to discriminate under this theory usually requires a showing of conscious bias or purposeful discrimination.”
The other legal avenue claimants may travel to prove their employment discrimination claims is called
“disparate impact,” or at times “adverse impact.” Pursuant to this theory, it is illegal for an employer to promulgate
and apply a neutral employment policy that has a disparate, or disproportionate, negative impact on employees and
applicants of a particular race, color, religion, sex, or national origin, unless the policy is job related and necessary to
the operation of the business, or, in the case of age, the policy is based on a reasonable factor other than age (Equal
Employment Opportunity Commission, Prohibited Employment Policies/Practices, 2011). This disparate impact
legal doctrine does not require proof of an employer’s intent to discriminate (Cavico and Mujtaba, 2008). Rather, “a
superficially neutral employment policy, practice or standard may violate the Civil Rights Act if it has a
disproportionate discriminatory impact on a protected class of employees” (Cavico and Mujtaba, 2008, p. 501).
Accordingly, such a practice will be deemed illegal if it has a disproportionate discriminatory impact on a protected
class and the employer cannot justify the practice out of legitimate business necessity (Cavico and Mujtaba, 2008;
Mahajan, 2007). However, Mahajan (2007, p. 178) warns that “…it is difficult for a plaintiff to prove that a specific
practice has a disparate impact on members of a protected group if there are not many other employees that are
members of the group in question, if other employees who are members of the group choose to abide by the
employer’s appearance policy.” Disparate impact as a legal doctrine was first solidified in case law by the U.S.
Supreme Court case of Griggs v. Duke Power (1971), further refined by the Court in Albemarle Paper Co. v. Moody
(1975); codified in statute by the Civil Rights Act of 1991 (Civil Rights Act of 1991); and reaffirmed by the
Supreme Court in Raytheon Co. v. Hernandez (2003). For example, a minimum height and weight requirement for a
correctional counselor position had a disproportionate and adverse impact on women and was not job-related or
necessary, and thus was deemed to be illegal (Dothard v. Rawlinson, 1977). However, Mahajan (2007, p. 177)
warns generally that “even if an appearance policy implicates one of Title VII’s protected categories, the framework
of Title VII’s two main theories of liability, disparate treatment and disparate impact, makes it difficult for
employees to challenge discriminatory appearance policies to obtain relief.”
The General “Appearance” Rule
Title VII of the Civil Rights Act protects employees and job applicants from discrimination based on the
protected categories of race, color, sex, national origin, and religion. Appearance, let alone “attractiveness” (or the
lack thereof), is not a protected category. Consequently, it is not necessarily illegal to discriminate based on
appearance, for example, by hiring only attractive people.
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Appearance as Race or Color Discrimination
If an appearance-based case can be connected to race or color discrimination then the plaintiff employee
may have a viable civil rights lawsuit. As such, Corbett (2007, p. 155) notes that “…some plaintiffs have
successfully pursued claims under then-existing laws if the appearance-based discrimination could be characterized
as…race-based…. These plaintiffs only succeeded when the attractive look the employer was seeking was not just
pretty, but pretty and white….” James (2008, pp. 648-49) states that appearance policies can be tied to race
discrimination “when the policies involve race-linked or race-specific physical traits.” Skin tone and facial hair
would be examples of a possible race linkage. In one recent case cited by the Equal Employment Opportunity
Commission, the agency instituted a race discrimination lawsuit against a restaurant and pub in Georgia because the
employer wanted employees who were “attractive cast members” and who would fit in with the business’ “festive
atmosphere.” The EEOC contended that the restaurant and pub violated Title VII for firing an African-American
employee due to her race and color because she was “too dark” (Equal Employment Opportunity Commission, Press
Release, 9/26/11). Similarly, the Wall Street Journal (Zimmerman, 2011) reported that the EEOC is bringing an
appearance race- and color-based lawsuit against Bass Pro Shops because company managers repeatedly refused to
hire non-white workers as clerks, cashiers, and managers. One specific allegation made by the agency was that a
manager in a Louisiana store refused to hire a qualified black applicant because he did not fit in with the “company
profile” (Zimmerman, 2011). Another allegation in the Bass Pro case was that a senior level employee based in
Indiana was seen discarding employment applications based on the job-seekers’ names, which the senior employee
said he could tell were “black” names (Zimmerman, 2011). The Miami Herald (Greenhouse, 2003) reported on a
case brought by the EEOC against the Mandarin Hotel in West Hollywood, California, which was settled for over $1
million. The EEOC accused the hotel of race discrimination for discharging nine valet attendants and bellhops, eight
of whom were non-white, because they were “too ethnic” and did not fit in with the hotel’s goal of creating a
“trendier group” of employees (Greenhouse, 2003). Similarly, Corbett (2011, p. 634) relates the case of the clothing
retailer, Abercrombie & Fitch, which due to its young customer base, wanted its sales personnel to have an “A&F
Look.” However, the company was sued for race discrimination because the “A&F Look” was accused of being a
young, “preppie, and “white” look. Corbett (2011, p. 634) further relates that such a lawsuit as well as others,
including one filed by the EEOC, some contending sex discrimination, were settled by the company for
approximately $50 million. James (2008, p. 655) also points out that the plaintiffs in the A&F case successfully
connected appearance-based discrimination to race, resulting in a large settlement as well as a great deal of criticism
and negative publicity regarding the company’s hiring policies and practices. Accordingly, so long as any
appearance discrimination is not connected to race or color discrimination the appearance discrimination is legal.
Appearance as Sex Discrimination
Appearance in the form of an attractiveness standard can result in illegal sex discrimination pursuant to
civil rights laws when the appearance standard is applied to women but not men; that is, the female employee or job
applicant must demonstrate that she was treated differently than a similarly situated male employee or applicant
(Corbett, 2011). Furthermore, appearance requirements that are based on sexual stereotypes are impermissible
(James, 2008). For example, in the California appeals court case of Yanowitz v. L’Oreal (2003), a male executive’s
order to a manager to fire a female employee because the employee was not sufficiently “good looking enough” and
not “hot enough” to sell perfume was deemed to be illegal sex discrimination when no similar attractiveness
standards were applied to male employees. Women, therefore, cannot be subject to different and more severe and
burdensome appearance requirements than men. Another leading case is the federal appeals court decision in Craft
v. Metromedia, Inc. (1985), where a media company reassigned a female news anchor to a different job because of
her looks. She claimed that the company’s appearance standards were applied more strictly to women than to men.
The court, however, ruled against her, explaining that the evidence indicated that the company was concerned with
the appearance of all its on-air personnel, that all employees were required to have a professional and business-like
appearance in conformity with community standards, based in part on viewer surveys, that these standards were
neutral, and, significantly, that the company’s policies and standards were critical to the media company’s economic
well-being (Craft v. Metromedia, Inc., 1985). Another leading case is the federal Court of Appeals decision in
Jespersen v. Harrah’s Operating Company (2006). In Jespersen, the plaintiff female employee was discharged for
refusing to wear facial make-up in conformity with the company policy, claiming that wearing the make-up
conflicted with her self-image. She sued, asserting sex discrimination because the company’s policy required female
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employees to conform to sex-based stereotypes. However, the court rejected her claim, holding that the employer’s
appearance standards did not impose unequal burdens on men and women, and consequently there was no sex
discrimination. Significantly, the court explained its rationale for rejecting her claim: Otherwise, “we would come
perilously close to holding that every…appearance requirement that an individual finds personally offensive, or in
conflict with his or her self-image, can create a triable issue of sex discrimination” (Jespersen, 2006, p. 1112). One
of the more recent cases on this issue is Lewis v. Heartland Inns of America, LLC (2010), in which a female
employee brought a discrimination and retaliation action against her employer under Title VII and Iowa Civil Rights
Act because she transferred to the “graveyard shift.” In Lewis, the court held there was a genuine issue of fact
because of the existence of allegations that the hotel front desk worker was required to be “pretty” and have a “Mid-
western girl” look to remain at this visible shift position could be actionable if the allegations were proven to be
pretextual to further stereotypical attitudes and discrimination against females.
Regarding height and weight requirements, if an employer is going to establish them, they must be applied
to both male as well as female employees; otherwise, the employer could be liable for disparate treatment based on
sex pursuant to Title VII. For example, in one federal appeals court case, the court ruled that the employer acted
illegally when the employer’s maximum weight standards were applied to the exclusively female position of “flight
hostess” but not to a similar though exclusively male position of “director of passenger service” (Gerdon v.
Continental Airlines, 1982). Similarly, Fowler-Hermes (2001) relates a federal appeals case where the court found
that the weight policy of United Airlines was discriminatory. Although both men and women were subject to the
weight requirements, the court found that the airline was imposing a more burdensome weight policy on women by
requiring that female flight attendants adhere to maximums for a medium-framed person, but male flight attendants
were allowed to reach maximums for larger-framed person. However, Fowler-Hermes (2001) relates a federal
district court case where the employer’s appearance requirement of a “thin and cute” sales force prevented a 270
pound woman from obtaining a promotion to an outside sales position. The employer admitted that the woman was
denied a promotion because of her weight, but there was no gender discrimination pursuant to Title VII because the
plaintiff woman could not identify one overweight male in the outside sales force. Weight, therefore, is not a
protected class under Title VII, and consequently discrimination based on weight alone is not per se illegal.
Nevertheless, regarding height and weight requirements, the Equal Employment Opportunity Commission notes that
these requirements may disproportionately limit the employment opportunities of certain protected groups;
consequently, unless the employer can show that these requirements are necessary for performance of the job, they
may be viewed as illegal pursuant to federal civil rights laws. Accordingly, the EEOC advises employers to avoid
inquiries about height and weight unless job-related (Equal Employment Opportunity Commission, Pre-
Employment Inquiries and Height and Weight, 2011).
In examining the employment-appearance-gender case law, the conclusion is that subjecting women but not
men to appearance and attractiveness requirements is illegal sex discrimination. As a result, Steinle (2006, p. 267)
states that “absent evidence that a policy places a calculable unequal burden on one gender over the other, Title VII
is unlikely to provide a remedy for parties who believe they have been treated adversely ‘because of sex.’” As such,
Mahajan (2007, p. 191) adds that “employers may freely impose attractiveness requirements on women as long as
members of both sexes are supposedly regulated” (emphasis added). In reviewing the law of sex discrimination as
applied to appearance cases, Corbett (2011, p. 637) concludes that generally sex discrimination will not be an
efficacious legal vehicle because the “theory will not help either beautiful or ugly men or women who are fired for
appearance unless they connect it to different treatment of the sexes.” Accordingly, so long as the appearance
discrimination is not connected to sex discrimination and that any appearance standards are applied equally to men
and women, then the appearance discrimination is legal.
Appearance as National Origin Discrimination
If appearance discrimination can be connected to national origin discrimination then the aggrieved
employee can have a viable civil rights lawsuit. The Equal Employment Opportunity Commission provides an
example of how appearance discrimination would violate the law as national origin discrimination. The example
supposes that an applicant, called Radika, a native of India, applies for a job as a receptionist. At the interview, the
company representative tells her that she would not be right for the position because the company is looking for
someone with “an all American front office appearance.” Radika is dressed appropriately, but the only element of
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her appearance that is not in conformity with the company’s standard is that she is of Indian ancestry. Accordingly,
the EEOC counsels that if she can demonstrate that the company representative viewed her appearance as
inappropriate because of her Indian features, Radika can establish a violation of the law (Equal Employment
Opportunity Commission, Fact Sheet, 2011). Corbett (2011, pp. 637-638) also notes that the “seeds of a national
origin claim” can be planted when “a particular fashion was so closely associated with a particular race or national-
origin group that to discriminate on the basis of fashion was the equivalent of discrimination based on race or
national origin.” Yet fashion is changeable; but one’s height is not. Accordingly, the Equal Employment
Opportunity Commission warns that an employer’s minimum height requirements might have a disproportionate
impact, and consequently screen out, applicants of a particular national origin, such as Hispanics and Asians; and
thus such a policy would be against the law unless it is related to the job and necessary for the employer to operate
its business in a safe or efficient manner (Equal Employment Opportunity Commission, Fact Sheet, 2011).
Therefore, so long as the appearance discrimination is not connected to national origin the appearance
discrimination is legal.
Business Necessity Defense
Civil rights laws also provide a “business necessity” defense in disparate impact cases for all protected
characteristics, except age where the defense is the “reasonable factors other than age” test (James, 2008, pp. 665-
66; Corbett, 2007, p. 176). So, assuming that an employer’s neutral employment practices or policies had a disparate
or adverse impact and that appearance was a protected characteristic directly or indirectly by a connection to a
protected characteristic - the employer would have available the business necessity defense. However, James (2008,
pp. 665-66) points out one major problem with this defense, that is,
The difficulty arises…because a business necessity must also be integral to the position and attractiveness usually is
not considered essential to sales. For example, attractiveness is not a necessary quality for an employee to assist
customers, utilize a cash register, or fold clothing. As a result, attractiveness will not be considered a valid hiring
criterion, because an unattractive person is as capable of performing the required duties as an attractive one.
STATE LAWS
Although federal civil rights laws do not protect against appearance discrimination unless the
discrimination can be linked to a protected category, there are a few states and localities that do protect against
appearance discrimination. Initially, the EEOC points out that regarding specifically height and weight inquiries and
requirements that a number of states and localities have laws that specifically prohibit discrimination on the basis of
height and weight unless the height and weight requirements are predicated on the actual requirements of the job
(Equal Employment Opportunity Commission, Pre-Employment Inquiries and Height and Weight, 2011).
Recognizing the underlying unfairness of “lookism” practiced by employers under the guise of the employment at-
will principle, state and local governments have tried to fill the void in this area due to the federal government’s
inability to act. Often this situation is typical in the area of employment law, where local jurisdictions act as
experimental laboratories for pressing, progressive social change to address their local populace’s concerns. For
example, in the void of federal level protections, many state and local jurisdictions have taken the lead in outlawing
discrimination in employment based on sexual preference (Cavico, Muffler, and Mujtaba, 2012, pp. 9-13, 2012).
Regarding appearance, Michigan, Santa Cruz and San Francisco, California, and Washington, D.C., have passed
laws prohibiting discrimination because of weight (James, 2008; Capell, 2007; Corbett, 2007). Furthermore, the
District of Columbia, Urbana, Illinois, Madison, Wisconsin, and Santa Cruz, California have passed laws prohibiting
discrimination based on some aspect of personal appearance (James, 2008; Corbett, 2007).
Michigan is the one and only state addressing appearance discrimination in some fashion. Michigan passed
the Elliott-Larsen Civil Rights Act 453 of 1976 which banned employment discrimination specifically based upon
height and weight, along with other traditional protected classes (Mich. Comp. Laws Ann. Section 37.2102 (2004).
Although the statute does not explicitly include attractiveness as a protected appearance characteristic, it specifically
mentions that height and weight are appearance factors that are protected. The previously discussed evidentiary
“burden shifting,” used when addressing federal discrimination complaints in the workplace, also applies to
allegations under this code provision (Harrison v. Olde Financial Corp., 1998).
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Although not a “state jurisdiction,” Washington, D.C.’s anti-discrimination laws are considered some of the
broadest in the nation preventing employers from discriminating based on “looks” and actually identifying “personal
appearance” as a protected class (D.C. Code Ann. § 2-1402.11(a) (2001). The provision proffers the definition of
“personal appearance” as follows:
“Personal appearancemeans the outward appearance of any person, irrespective of sex , with regard to bodily
condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not
limited to, hair style and beards. It shall not relate, however, to the requirement of cleanliness, uniforms, or
prescribed standards, when uniformly applied for admittance to a public accommodation, or when uniformly
applied to a class of employees for a reasonable business purpose; or when such bodily conditions or
characteristics, style or manner of dress or personal grooming presents a danger to the health, welfare or safety of
any individual (D.C. Code Ann. § 2-1401.02 (22) (2010)).
Although the District of Columbia provision states that discrimination is prohibited based on personal
appearance, it allows exceptions which are available for business necessity and reasonable business purposes.
Much to worker’s or job applicant’s dismay, the vast majority of the states do not explicitly outlaw
discrimination based on personal appearance. Moreover, those who sue upon such a theory can be surprised of a
court’s reluctance to read into the law such appearance protections, when none specifically exist. This result was
illustrated in the case in Brice v. Resh (2011), where the plaintiff alleged her employer’s CEO ordered her to be
terminated due to her “body shape.” The court held that should claim based on sex discrimination, but could not be
premised on an allegation of a separate appearance discrimination claim based on the same operative facts because
the state of Wisconsin did not recognize such an action, and none would be read into the law by that court.
There is very little state and local law dealing explicitly and even indirectly with appearance
discrimination. Nonetheless, people, perhaps many people, believe that appearance-based discrimination is morally
wrong and unfair; and thus they may believe that “surely employers cannot legally fire someone based on physical
appearance alone….(T)his is not the case, however, because most state legislatures have not enacted laws
prohibiting appearance-based discrimination, and most never will” (Corbett, 2011, pp. 625-26). Furthermore, James
(2008) worries that if too many state and local jurisdictions did enact appearance discrimination laws these laws will
be vague and overbroad as well as not uniform and consistent, and as a result would engender inconsistent results
and apprehension on the part of the business community. Nonetheless, in the vast majority of jurisdictions,
appearance discrimination, particularly in the form of attractiveness, is not a protected characteristic pursuant to
federal, state, or local civil rights law, and thus, as a general rule, it is legal to discriminate based on appearance.
However, due to the absence of federal protection and the paucity of law on the state and local level, presently there
are proposals to amend civil rights laws to encompass appearance discrimination as a protected category.
IMPLICATIONS AND RECOMMENDATIONS
So, appearance discrimination is as a general rule legal as well as moral based on most ethical theories.
What then are the practical implications for employers? Legally, an employer as a general rule can discriminate
based on appearance in the form of attractiveness, but an employer must be very careful since an appearance
standard might be connected to a Title VII or ADEA or ADA protected category, thereby triggering a civil rights
discrimination lawsuit. As such, Mahajan (2007, p. 203) emphasizes that “the first step to protecting individuals
adversely affected by employer-imposed appearance policies is to recognize the discriminatory potential of those
policies, particularly those that serve as proxies for discrimination based on suspect categories, such as gender and
race.” For example, an employer may be able to discriminate in hiring by preferring “good-looking” job applicants;
but if that appearance standard results in the hiring of only young, white employees, then the employer could be
sued pursuant to Title VII and the ADEA. Similarly, as explained by Corbett (2007, p. 164): “It is not illegal for
employers to discriminate on the basis of certain physical characteristics those covered by existing discrimination
laws. Thus, if an employer discriminates on the basis of wanting a certain ‘look,’ and that lo ok is ‘young’ or ‘white’
or ‘American,’ then the discrimination is illegal under the existing employment discrimination laws.” Employers,
therefore, can and must take precautions to preclude attractiveness/appearance lawsuits. As such, if an employer
deems it necessary or even beneficial to have an attractiveness standard, or perhaps a concomitant height or weight
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standard, the employer must make sure that discriminatory elements are not built into the standard or that the
standard is applied in a discriminatory manner. Most importantly, men and women, blacks and whites, and people of
different races and nationalities must be treated in a comparable and fair manner. Appearance and attractiveness
cannot legally or morally be used as a pretext for impermissible discrimination.
CONCLUSION
Appearance discrimination in employment, especially based on perceived “attractiveness,” certainly has
emerged as a controversial, and complicated, legal, ethical, and management concern. One point is clear, though,
and that is when an appearance discrimination claim can be connected to a protected category, and thus converted
into a discrimination claim based on race, color, sex, or any other protected characteristic under civil rights laws,
then an aggrieved plaintiff employee or applicant may have a viable cause of action. However, if a person, perhaps
regarded as “unattractive,” cannot tie his or her appearance-based lawsuit to a protected category under federal,
state, or local civil rights laws, that person will not have legal redress.
AUTHOR INFORMATION
Frank J. Cavico is a Professor of Business Law and Ethics at the H. Wayne Huizenga School of Business and
Entrepreneurship of Nova Southeastern University in Ft. Lauderdale, Florida. He has been involved in an array of
teaching responsibilities, at the undergraduate, master’s and doctoral levels, encompassing such subject matter areas
as business law, government regulation of business, constitutional law, administrative law and ethics, labor law and
labor relations, health care law, and business ethics. In 2000, he was awarded the Excellence in Teaching Award by
the Huizenga School; and in 2007, he was awarded the Faculty Member of the Year Award by the Huizenga School
of Business and Entrepreneurship. He holds a J.D. from the St. Mary’s University School of Law and an LL.M from
the University of San Diego, School of Law; and is a member of the Florida and Texas Bar Associations. He is the
author and co-author of several books and numerous law review and management journal articles. E-mail:
cavico@huizenga.nova.edu
Stephen C. Muffler is a full-time attorney and member of the Florida Bar since 1993 and an adjunct professor of
Business Law and Ethics at the H. Wayne Huizenga School of Business and Entrepreneurship of Nova Southeastern
University in Ft. Lauderdale, Florida since 1999. He was awarded the Adjunct Professor of the Year at H. Wayne
Huizenga School of Business and Entrepreneurship of Nova Southeastern University in 2007. He was a former legal
assistant to the Florida Bar’s ethics enforcement branch in Miami Florida and former Special Public Defender for
the 17th Judicial Circuit, in and for Broward County Florida. His civic service has included being the Chairman of
the City of Fort Lauderdale’s Citizen Police Review Board and the Executive Director of the City of Key West’s
Citizen Review Board, both of which investigate and/or review administrative complaints against municipal police
officers. He has authored and co-authored various articles on legal & ethical topics, and occasionally lectures by
invitation to national and local organizations on various law and professionalism issues. He holds a J.D. from Nova
Southeastern University and an LL.M from the University of Miami, School of Law. E-mail: scmuffle@nova.edu
Bahaudin G. Mujtaba is Professor of Management and Human Resources at the H. Wayne Huizenga School of
Business and Entrepreneurship of Nova Southeastern University in Ft. Lauderdale, Florida. Bahaudin is the author
and coauthor of several professional and academic books dealing with diversity, ethics, and business management,
as well as numerous academic journal articles. During the past twenty-five years he has had the pleasure of working
with human resource professionals in the United States, Brazil, Bahamas, Afghanistan, Pakistan, St. Lucia, Grenada,
Malaysia, Japan, Vietnam, China, India, Thailand, and Jamaica. This diverse exposure has provided him many
insights in ethics, culture, and management from the perspectives of different firms, people groups, and countries.
Bahaudin can be reached at E-mail: mujtaba@nova.edu (Corresponding author)
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B4.
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