Business Ethics

Looks Discrimination

Employment discrimination legislation has evolved to include race, disabilities, sexual harassment of either gender, and age. In lieu of this evolution and an increasing trend toward equality for all individuals in the workplace, the time has come for the protective reach of employment discrimination law to cover ugliness. While the proposal may cause titters at first, evidence exists that discrimination based on looks (or physical appearance) occurs in the workplace. An investigation was conducted by ABC’s 20/20 news program in 1994 that sent two men and two women into the workplace to secure the same jobs (Sessions 1). The individuals were coached to act in a similar manner during the interviews and took with them resumes with matching education and experience. The only difference was that one of the men and one of the women was superior in physical attraction to their counterpart. The results demonstrate whether intentional or not, looks discrimination does play a role in the employment process “In five cases out of five, the more attractive woman got the job; in three chances out of three, the more attractive man was hired” (Sessions 1).

Historically, legislation aimed at physical appearance is not a revolutionary concept. Many jurisdictions had laws in the past that barred “ugly” or “unsightly” people from appearing in public places. Such laws today would cause an outcry among civil rights activists. Yet, legislation aimed at protecting “ugly” people from discrimination does not exist on a national level with other employment discrimination legislation. Title VII of the Civil Rights Act affords protection against discrimination based on many aspects, including race, disability, sex, and age. However, before a new kind of characteristic can become protected under federal civil rights law, it must be associated in some form with an already protected characteristic under anti-discrimination law. For example, someone who is grossly obese and believes they have suffered employment discrimination as a result will have a good chance of winning a lawsuit based on discrimination if the obesity is due to some kind of disability or medical condition. However, if the obesity is not related to some already protected characteristics, chances are the courts would not view it as discrimination.

Legally, employment discrimination law is designed to achieve goals that protect both the employee and the employer. It protects the employee from unfair bias and it protects the employer by diminishing the risk of lawsuit based on discrimination. The Equal Employment Opportunity Commission (EEOC) has been instrumental in the development of employment discrimination law. According to the EEOC guidelines, employment discrimination law should be designed to achieve the following goals in descending order of importance:

· Eliminating employment bias and arbitrariness from the workplace.

· Limiting employment decisions to unaccommodable criteria that are essential to job qualification.

· Facilitating occupational goal attainment.

· Enhancing employment decision-making.

· Designing ergonomically and psychosocially optimal work environments.

· Enhancing occupational mobility.

· Minimizing social costs of litigation.

· Facilitating resolution of employment-related disputes.

· Eliminating employee retaliation.

(Amack 1)

There is a fine line on employment discrimination law when it comes to appearance. Typically, appearance discrimination lawsuits have been decided in favor of employers as long as the criteria for appearance is applied equally to males and females. For example, models cannot sue a potential employer for not hiring them because they were considered less attractive than another model because the same criteria is applied to male models. Age discrimination has recently come under the protective reach of employment discrimination law. In Camacho v. Sears Roebuck de Puerto Rico, a woman brought forth a lawsuit alleging that only employees older than 45 years of age were give rate reductions over $3.00 per hour, while no one under 45 years of age had (New 5). The court found in favor of the employee because “the employer failed to articulate any reason other than age to explain the policy’s disparate impact” (New 5).

Legislation aimed at appearance may find its best ally in age discrimination legislation because age play an important role in how we look. Age discrimination lawsuits have met with an equal measure of success and failure in the courts. However, in examining one successful and one unsuccessful lawsuit based on age discrimination, we can see how closely looks are aligned with age. In one unsuccessful suit, a court ruled against a woman who had worked as a Playboy Bunny and sued her former employer because of age discrimination “A 1972 case upheld the Playboy Club’s termination of a ‘bunny’ for having lost her ‘bunny image’ through aging” (Sessions 5). However, in another suit based on age discrimination, a court upheld a topless waitress’ claim that her employer refused to let her dance topless because of age “An appeals court allowed a topless waitress at a Dallas gentlemen’s club to sue her employer for his refusal to promote her to a dancer position because of her age” (Sessions 5). Thus, we can see how closely associated age is with appearance and looks. Winning protection for looks discrimination under employment discrimination may have its best chance if it is associated with already protected age discrimination.

In those cases where appearance and/or looks discrimination cannot be associated or linked to an already protected characteristics of employment discrimination law, the burden of proof remains with the employee. Cosmetic disfigurement is already afforded protection against discrimination under disability law, but many individuals argue on behalf of expanding appearance protection. We cannot be too far from the day when legislation may be in place to protect against employment discrimination based on big noses, crooked teeth, fat posteriors, and lazy eyes. At present, some jurisdictions have already adopted employment discrimination legislation that protects against height and weight discrimination and other personal appearance aspects “Michigan passed a law preventing discrimination based on height and weight—the only such state law in the US” (Sessions 5).

Looks discrimination does routinely occur. Many restaurant managers routinely avoid hiring unsightly and overweight men and women as waitstaff in order to enhance dining room atmosphere. Many employers resist hiring obese people because they associate obesity with laziness and physical inability. No service oriented business desires unsightly service people who have rotten teeth, multiple piercings and tattoos, are overweight by more than 75 pounds or who insist on wearing dirty and ripped clothing. Therefore, any kind of looks discrimination legislation must take into account the employer’s right to maintain a certain image in the appearance of its employees. However, while this may afford the employer the right to reject individuals who appear as those mentioned above, it should not afford them the right to reject potential employees because they have crossed-eyes, huge noses, burn scars, large bottoms, effeminate men or hairy-lipped and hairy-armed women. The wording of looks discrimination legislation might prove most effective if it borrows from Title VII’s measure of discrimination against race “If an employment practice which operates to exclude blacks cannot be shown to be related to job performance, the practice is prohibited” (Shaping 3). Thus, all forms of looks discrimination should be afforded employment discrimination protection that have nothing to do with job performance. The burden will be on the employer to prove those rejected due to physical appearance have a direct bearing on job performance (i.e., someone who is 150 pounds overweight does not appeal to consumers of a diet program, or someone with bad acne does not perform well at a cosmetics counter). Therefore, looks discrimination protection should be afforded under Title VII employment discrimination law.

Bibliography

New developments in employment discrimination law. Available at: http://www.google.com, November 2000, 1-6.

Shaping employment discrimination law. Available at: http://www.google.com, November 2000, 1-5.

Amack, L. O. The future of employment discrimination law. Law Info Forum, Available at: http://www.google.com, March 6, 1994, 1-4.

Sessions, D. D. Looks discrimination: If looks could kill…. Equal Opportunity Career Journal, Nov-Dec 1995, 1-6.

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