Wednesday, May 5, 2010

The Un-pretty Protected Class?

Imagine you represent a corporate defendant, and in the course of discovery you receive the following interrogatories:
1. On what date did Defendant terminate Plaintiff?

2. Who did Defendant hire to replace Plaintiff?

3. On a scale of 1 to 10, how hot is the person described in response to interrogatory #2.

4. Would you describe the Plaintiff as visually repulsive?
What the heck kind of discovery is this!? Perhaps, Plaintiff is trying to establish a prima facie case of appearance discrimination. While I had some fun at the outset, there's actually a serious argument behind the premise.

The Beauty Bias: The Injustice of Appearance in Life and LawIn an interesting National Law Journal op-ed, Prejudiced toward pretty, Deborah Rhode (author of The Beauty Bias) makes the case for eliminating appearance discrimination in the workplace. She cites studies finding that attractive people are "more likely to be viewed as intelligent, likeable and good [and] more likely to be hired and promoted and to earn higher salaries."

She also points out that appearance discrimination has a disparate impact on women and some racial minorities. For example, women are judged more harshly for being overweight and showing signs of aging, along with spending far greater time and money on their appearance. Some darker skinned minorities with "less 'Anglo'" features face greater workplace bias.

Employers surely have better criteria than "attractiveness" on which to base hiring decisions. I like to use the surgeon example when discussing discrimination: If you needed a life-saving operation would you seek out the best looking surgeon to perform the operation? I think not.

I don't expect Title VII to be amended to add "unattractive" as a protected class any time soon, but it's an interesting issue.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.