Could Unattractiveness Become a Protected Class?

A few weeks ago, my colleague posted about whether obesity would become a protected class.

Biases based upon appearance don’t end with obesity. Studies show that:

Can our current set of federal, state, and local discrimination laws and regulations properly address appearance-based discrimination? Or does this bias demand that unattractiveness be made a new protected class?

In her book, The Beauty Bias, Standford Law Professor Deborah L. Rhode argues that narrow interpretations of state and federal law exclude from protection a variety of individuals who are unfairly discriminated against based upon their appearance. This appearance-based bias, she argues, infringes fundamental rights, compromises merit principles, reinforces debilitating stereotypes, and compounds the disadvantages of race, class, and gender.

Rhode argues in favor for laws prohibiting appearance-based discrimination, citing the examples of Michigan, and six localities (San Francisco, CA; Santa Cruz, CA; Madison, WI; Urbana, IL; Howard County, MD; and the District of Columbia) which each prohibit some form of appearance discrimination. She notes that while these laws “vary in coverage and in the frequency of enforcement…no jurisdiction has experienced the flood of frivolous claims that commentators have anticipated.”

But can we so quickly say that prohibitions against appearance-discrimination would not lead to a flood of frivolous claims?

Rhode herself admits, when discussing for example the 1992 ordinance in Santa Cruz, California that banned discrimination based on a variety of factors, including height, weight, and appearance, that the Santa Cruz ordinance permitted only “extremely limited remedies.” The ordinance does not allow for punitive damages, nor does it appear to allow for back pay or for emotional harm damages. Moreover, the size of a class action under a local ordinance would be necessarily limited.

But what if a prohibition against appearance discrimination was incorporated into Title VII? The remedies available under Title VII are far more favorable, and include the possibility of punitive damages and back pay. Moreover, if employees were to bring an appearance-based class action, the amount of damages at issue in such a lawsuit would certainly make an appearance-based class action, shall we say…attractive.

Further, trying an appearance-based discrimination case presents difficulties absent from most discrimination cases. Unlike most protected classes, unattractiveness is arguably not an immutable characteristic. Makeover shows like What Not To Wear have taught us that the homeliest of employees can be made beautiful in under three days. Isn’t it the employee’s responsibility to carry him or herself in a manner that improves others’ perceptions? What if the issue isn’t that the employee is unattractive, but rather, that at times the employee comes into work looking disheveled and unprofessional? An employer certainly has a bona fide business reason for desiring its employees to look professional. But how do you distinguish this from a claim of “appearance-based” discrimination (if that were covered by Title VII)?

Certain preferences are considered to be hard-wired into our biology, such as the preferences for facial symmetry, for thin waists and broad hips in women of child-bearing years, and for broad shoulders and small waists in men. How would a plaintiff go about proving that this deep-seated biological preference was the root of an employment decision? And in such cases, should biological preferences be a defense? Are we able to reasonably recognize such preferences in our own conduct and combat against them?

Unfair treatment is never a good idea in the workplace; it causes resentment among employees, is bad for morale, and may subject the employer (rightly or wrongly) to liability. While it is certainly desirable for employers to base employment decisions on non-appearance-based criteria, including unattractiveness as a protected class seems to open up a Pandora’s box of problems.