The next chapter in civil rights

Cassandra Smith, 20, of Roseville, Mich. filed a lawsuit against Hooters, saying she was placed on a 30-day weight probation and told to agree to lose weight or lose her job.

Beauty may only be skin deep, but that’s plenty deep enough to cost you a job, a promotion, or the training to get one. Marie Smith, a Hooters waitress, who was 5-feet 8-inches and 132 pounds, was placed on involuntary weight probation until she could fit into a company uniform: the only sizes available were small, extra small, and extra extra small. Brenda Lewis was an Iowa hotel desk clerk who lost her job despite excellent performance ratings because she appeared “tomboyish,” and lacked the “pretty” “Midwestern girl look” that the operations manager thought appropriate. Sharon Russell was expelled from a nursing school not because of her record but because of her weight and because administrators worried that she would provide a poor “role model [for] good health habits” when counseling patients.

Are these unusual cases? The research available suggests not. In a recently released Newsweek poll, over half of corporate hiring managers believed that unattractive but qualified employees would have a harder time getting hired, and two thirds thought looks would affect performance ratings. When asked to rate nine qualities relevant in employment decisions, appearance came in third in importance, below experience and confidence, but above educational credentials.

Other studies similarly confirm the pervasiveness of the “beauty bias.” About the same proportion of employees report discrimination based on appearance as discrimination based on race and sex. And economists have quantified a substantial “plainness penalty” even in occupations like law, where looks generally bear no relationship to competence. In educational settings, a cottage industry of studies have shown that teachers give lower grades to unattractive students; students give lower course evaluations to unattractive teachers.

Part of the problem is the lack of consensus that any of this is a problem. “So you Want to Hire the Beautiful” ran the title of one Business Week column. “What’s wrong with that?”

What’s wrong is the same thing that’s wrong with discrimination based on race, ethnicity, or gender. Prejudice based on looks rather than performance violates principles of equal opportunity and social justice that this nation has fought hard to establish. Beauty bias is the last frontier of acceptable bigotry. Except in a few localities, it is now perfectly legal. That needs to change. In schools and workplaces, people should be judged on how they perform, not how they look.

All too often, discrimination based on appearance, like other forms of bias, rests on inaccurate stereotypes. Assumptions that overweight individuals are lazy, undisciplined, or unfit are a case in point. In one typical example, a woman failed to get a job as a Texas Bus Lines driver because a company doctor assumed that her weight would prevent her from effectively protecting passengers in an accident. He later acknowledged that she had no health problems and that he had performed no agility tests; he had based his conclusion on watching her “waddling down the hall.” Similarly, Jazzercise denied a franchise to Jennifer Portnick, a 240-pound San Francisco aerobics instructor, on the grounds that she lacked the right image — “fit” and “toned.” But in fact, she was both. She worked out six days a week and had no trouble attracting students. All she wanted was to be “judged on my merits not my measurements.”

A related problem with discrimination based on appearance is that it compounds other forms of discrimination based on gender, race, ethnicity, age, and sexual orientation. For example, women are held to higher standards than men and punished more for falling short. The grooming policy at Reno’s Harrah’s casino is a typical illustration. It required female bartenders to wear makeup and nail polish, and to have their hair “teased, curled, or styled.” Male bartenders needed only short haircuts and fingernails that were “neatly trimmed.” Darlene Jespersen, a bartender with an outstanding performance record, lost her job and then her lawsuit challenging the policy on grounds of sex discrimination. A federal appellate court rejected her claims for lack of evidence that the standards imposed disproportionate burdens of time and expense on women.

Yet does anyone, except apparently some federal judges, really need expert testimony comparing the time and money required for trimming fingernails with applying makeup and styling hair? As one dissenting judge pointed out, cosmetics “don’t grow on trees.” Such makeup and manicure requirements may seem trivial, but the broader principle is not. As another dissenting judge noted, the assumption underlying the casino’s policy was that “women’s undoctored faces compare unfavorably to men’s.” Holding only women to sexualized standards diverts attention from competence and perpetuates gender roles that are separate and by no means equal.

In some instances, such policies can also impose physical costs. Requirements of “stylish” high heel shoes are a major contributor to women’s foot and back problems, and unduly restrictive weight requirements contribute to unhealthy dieting practices. A representative case involved Atlantic City’s Borgata Hotel Casino & Spa demand that cocktail servers maintain an “hourglass figure.” When the thyroid condition of one of the Borgata Babes caused weight fluctuations that sent her from a size 4 to a size 6, she was told “Borgata Babes don’t go up in size.” The only exception was for women who got breast implants, who were entitled to a paid recovery period and a bigger bustier. Other servers experienced eating disorders and related health difficulties.

Female workers can be penalized for being too attractive as well as not attractive enough. In upper-level positions, beautiful or sexy women are subject to what social scientists label the “boopsy” or bimbo effect — their competence is questioned and their professionalism is discounted. Older women are also subject to a double standard and a double bind. Men can look distinguished as they age; they can gray with gravitas. But women of a certain age are often thought to need “work done.” Television viewers will accept a Larry King, but not the female equivalent. Yet women who attempt to conform to society’s airbrushed ideals risk ridicule for being vain and narcissistic, and for trying too hard to pass for young.

A final problem with appearance-based discrimination is that it infringes rights of privacy, self-expression, and religious or cultural identity. Examples include employers who refuse to allow corn rows, headscarves, and yarmulkes. These standards sometimes reflect homophobic biases. A blatant case of appearance discrimination based on sexual orientation involved Nikki Youngblood, a high school senior who challenged a Florida school board requirement that female students sit for yearbook portraits in a scoop neck dress. Youngblood was a lesbian who had never worn dresses. As her lawyer noted, she was not “a rebellious kid trying to destroy the sanctity of the school yearbook. She simply wanted to appear in her yearbook as herself, not a fluffed-up stereotype of what school administrators thought she should look like.”

So why not have a law banning such appearance discrimination? The most common objection is that employees’ attractiveness can be an effective selling point and a way to reinforce a “brand” look. As one Hooters spokesperson explained, “A lot of places sell good burgers. Hooters Girls, with their charm and all-American sex appeal, are what our customers come for.”

Yet that is an argument that courts have generally rejected in other discrimination contexts, and with reason. During the early Civil Rights era, Southern employers often argued that hiring blacks would be financially ruinous; white customers would go elsewhere. So too, airlines in the 1970s claimed that they should be allowed to refuse to hire men as flight attendants because male business passengers liked stewardesses in hot pants. In rejecting such customer preference defenses, Congress and the courts recognized that the most effective way of combating race and sex discrimination was to deprive people of the option to indulge it. The same should be true of discrimination based on appearance, unless image is the essence of the job, such as in modeling or acting.

Opponents of appearance laws, however, argue that even if discrimination on that basis is unfair, the law is incapable of eliminating it and efforts to do so will result in loony litigation, excessive costs, and corrosive backlash. These are real concerns, but it is by no means self-evident that prejudice based on appearance is harder to eradicate than other forms of bias. In fact, considerable evidence suggests that racial, gender, and disability biases are also deeply rooted, but the law has clearly helped change attitudes. And none of jurisdictions that now prohibit appearance discrimination have triggered the exorbitant costs or backlash that critics predict. The costs and difficulties of proving discrimination are generally enough to prevent frivolous claims. Cities like Santa Cruz, San Francisco, and Madison, Wisc., average between zero and nine complaints a year, and the state of Michigan averages about 30, only one of which typically ends up in court.

But these laws, even if infrequently invoked, can have broader positive effects. For example, Jennifer Portnick was able to sue Jazzercise for denial of a franchise under San Francisco’s law banning height and weight discrimination. In the wake of unfavorable publicity, the company changed its policy and publicly acknowledged that “people of varying weights can be fit.” Given recent scientific research suggesting that fitness, rather than body size, is generally the more important predictor of health in overweight individuals, that is an important social message.

The law is, of course, only a small part of the answer to appearance discrimination. Our social prejudices run deep. But the same is true of bias based on race and sex. Opponents who once argued against civil rights laws insisted that “you can’t legislate morality.” But you can legislate conduct. Although we have not eliminated racism or sexism in the workplace, we have made enormous progress. Tackling beauty bias would be another step towards a more just society, one that truly judges people on their merits. Shouldn’t we try?

Deborah L. Rhode is the Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession at Stanford Law School. She is the author of “The Beauty Bias: The Injustice of Appearance in Life and Law” (Oxford University Press, 2010).  


Full article and photo: http://www.boston.com/bostonglobe/ideas/articles/2010/08/08/looks/