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In her provocative new book, The Beauty Bias: The Injustice of Appearance in Law and Life, Stanford law professor Deborah Rhode argues that workers deserve legal protection against appearance-based discrimination unless their looks are directly relevant to their job performance.
Six cities and one state already ban various kinds of appearance-based discrimination. Contrary to the dire predictions of critics, these laws have not generated a flurry of litigation. Michigan, which banned appearance discrimination in the 1970s, averages one such lawsuit a year.
Rhode convincingly argues that beauty bias in the workplace is a widespread problem with serious consequences. Between 12 and 14 percent of workers say they’ve suffered some kind of appearance-based discrimination on the job.
It should go without saying that discrimination on the basis of appearance is unjust, especially when it comes to features individuals have little or no control over. Rhode does a good job of spelling out why such bias is offensive to human dignity and equal opportunity.
Volumes of psychological research have shown that unattractive people are assumed to be less intelligent, less capable and less trustworthy. Almost from birth, infants stare longer at faces that adults rate as attractive.
Employers are not immune. Resumes get less consideration if the boss thinks they’re coming from an unattractive person. Rhode notes that unattractive people are less likely to get hired and promoted and that they earn less on average, even in occupations where appearance has nothing to do with the job.
The increasing prevalence of obesity in America has done nothing to curb virulent prejudice against fat people. Ironically, immobilizing obesity is protected as a disability, but discrimination based purely on cosmetic aversion to fat is totally legal. In one study, 43% of overweight women reported feeling stigmatized by their employers. Obese women earn 12% less than their thinner counterparts with comparable qualifications. Obese women are more likely to live in poverty, even after controlling for other factors.
Rhode notes that beauty bias also exacerbates and perpetuates other kinds of discrimination. Female workers are held to more elaborate grooming standards than their male counterparts. Then again, women also face discrimination in more senior positions for being too pretty or too sexy. Debrahlee Lorenzana, a Citibank employee is making headlines for claiming that she was fired for distracting her male colleagues with excessive sexiness.
There’s a lot of overlap between appearance discrimination and racism. Some have speculated that coworkers percieved Lorenzana in a more sexualized way because she’s Latina. Stereotypically Anglo-European features like smooth hair, slim hips, and pert noses loom large in our prevailing beauty ideals. There’s a class component in beauty bias, too. A gleaming smile engineered by an orthodontist is a badge of membership in the middle class. As we all know, poverty increases the risk of obesity.
Thanks to the skyrocketing popularity of plastic surgery, a gulf is emerging between those who can afford Botox and facelifts and those who have to wear the natural signs of aging as gracefully as they can. Last year, the National Organization for Women came out against a proposed plastic surgery tax on the grounds that older women need work to get jobs in today’s economy.
Rhode acknowledges that the law can only do so much to mitigate the effects of such deep-seated prejudices, but she argues that the enormity of the problem is no excuse for inaction. Sexism, racism and homophobia are certainly ingrained, but that doesn’t mean that the law is powerless against them. As segregationists said in the era of Brown, you can’t legally force people not to be bigots. On the other hand, when you discourage people from acting like bigots, tolerance can become a habit.
Rhode doesn’t specifically address the role of unions in fighting appearance discrimination, but some of the famous examples she discusses in her book involve union members. The two waitresses who successfully challenged the Borgata Hotel and Casino’s strict weight limit in court also filed a successful grievance through the Hotel Employees and Restaurant Employees International Union (HERE) on the grounds that implementation of the rule violated their collective bargaining agreement.
Michael Yelnosky argues in the Duke Law Review that labor laws already provide a robust framework for unions to fight various kinds of appearance-related discrimination. He notes that the Borgata waitresses had an easier time than a nonunion bartender at Harrah’s Casino in Nevada who was ultimately fired for bucking the house rule that female bartenders had to wear makeup and teased hair while their male colleagues just had to look neat. A Nevada court ruled that Darlene Jesperson’s allegations weren’t enough to outweigh the principle of at-will employment (i.e., the employer’s right to fire anyone for just about any reason).
The good news for union workers is that virtually every collective bargaining agreement involves limitations on the employer’s right to fire at will. Yelnowsky stresses that unions can protect their members from appearance-based discrimination when it comes time to negotiate what constitutes “just cause” for termination. He cites an example in which a union successfully negotiated the right of dairy workers to have beards. He also notes that an all-female flight attendants union negotiated height, weight and dress standards through collective bargaining as early as 1945.
There’s a tendency to dismiss concerns over looks-based discrimination as frivolous. The Beauty Bias dares us to take appearance discrimination seriously, and for that alone it’s an important book. For more on the book, check out reviews by Dahlia Lithwick in Slate, Emily Bazelon in the New York Times, and Anna North on Jezebel.
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