‘You’re Not Attractive Enough to Work Here’ (Lookism)

McDonald, who is a partner in the Irvine, California office of national employment law firm Fisher & Phillips LLP, says there are two sides to appearance discrimination or “lookism”:

• “You’re not attractive enough to work here”
• “You’re too attractive to work here”

McDonald discussed both at SHRM’s Annual Conference and Exhibition held recently in Atlanta, Georgia.

Is Lookism Illegal?

Only a few jurisdictions make discrimination based on unattractiveness illegal, says McDonald:

• District of Columbia
• Santa Cruz, CA
• Michigan (height and weight)
• San Francisco (height and weight)

Otherwise there aren’t laws that directly prohibit lookism. Therefore, says McDonald, most challenges are based on other laws:

• Americans with Disabilities Act
• Title VII of Civil Rights Act of 1964
• Age Discrimination in Employment Act
• Analogous state laws

Americans with Disabilities Act

 “Unattractiveness” is not a disability, says McDonald. The ADA’s definition of “impairment” includes “cosmetic disfigurement” but excludes ordinary physical characteristics such as height, weight, eye color, hair color, etc.

Being overweight is not a disability (yet), adds McDonald, but morbid obesity (defined as weight that is 100% or more in excess of body norm for height and gender) is covered.

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Title VII

Title VII is the most popular vehicle for alleging appearance discrimination. These suits tyically rely on cases in 1970s and 1980s which struck down notion that only sexy young women could serve as flight attendants. For example:

• Diaz v. Pan Am (5th Cir. 1971) concluded that being female is not a BFOQ for flight attendant job, even though most customers preferred female flight attendants.
• Wilson v. Southwest Airlines (N.D. Tex. 1982) found that “female sex appeal” was not a BFOQ for flight attendants.

However, says McDonald, cases such as Diaz and Wilson are misconstrued in this context. These cases did not make appearance discrimination illegal. They only addressed the exclusion of men from flight attendant jobs. They did not prohibit an employer from preferring attractive employees (of either gender) over unattractive employees.

Similarly, the cases striking down weight limits for women are not helpful, says McDonald.

For example, Gerdom v. Continental Airlines (9th Cir. 1982) found that requiring “flight hostesses” to conform to weight standards is illegal where male employees in a similar job classification were not subject to weight standards. 

Again, the issue in the flight attendant weight cases was not that airlines could not prefer slim and attractive flight attendants, but that they applied weight standards only to women. 

In Marks v. National Communications Ass’n (S.D.N.Y. 1999), a 270 pound employee sued after being refused promotion to outside sales; a “thinner and cuter” colleague got the job.

The court rejected the lawsuit because employee could not show different weight standards for women vs. men; sex discrimination requires that sexes be treated differently.

Some other lookism cases:

In Alam v. Reno Hilton Corp. (D. Nev. 1993), the plaintiffs complained that only “barbie doll” persons were selected for casino dealer positions. The court rejected the claim; stating that even if the casino hired and transferred employees on the basis of sexual attractiveness, “such behavior is not actionable under Title VII.”

In Heilman v. Memeo (D. Nev. 2008), the plaintiff claimed that after she was fired, more attractive females were hired and less attractive males were hired.

The court stated: “The trouble with this claim is this court cannot discern a standard by which a jury would determine Defendant’s notion of attractiveness. It hardly needs to be said that beauty is in the eye of the beholder.”

Yanowitz v. L’Oreal USA (Cal. 2005) is the closest anyone has come to making a case, says McDonald. A manager was fired after refusing her boss’s order to fire an unattractive saleswoman and “get me somebody hot.” She sued, claiming retaliation for opposing sex discrimination.

The court sent her retaliation claim to trial but declined to “determine whether a gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would be unlawful sex discrimination.”

In Lewis v. Heartland Inns of America (8th Cir. 2010), an ex-employee had an “Ellen DeGeneres kind of look,” wearing loose-fitting men’s clothing, short hair and no makeup. Her employer allegedly preferred a “pretty midwestern girl look.”

The court held that the employee had established a prima facie case of sex discrimination, as the employee was required to conform to a gender stereotype.

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What Does This All Mean?

McDonald says we can draw several conclusions from all these cases:

• It’s not illegal to prefer an attractive employee or applicant over an unattractive one, says McDonald.
• Employers cannot enforce gender stereotypes
• “Not attractive enough” is OK. “Not feminine enough (or not masculine enough)” is not.

In tomorrow’s Advisor, the other side of the coin—You’re too attractive to work here, plus an intrudiction to the HR policy guru—SmartPolicies.