That is the question we explore in this week’s cases on sex
stereotyping in employment law. Our class coincides with Donald Trump’s suggestion
that his accusers were too unattractive to merit his attention. In one case,
he said: “Take a look. Look at her. Look at her words. And you tell me
what you think. I don’t think so,” Trump said of Natasha Stoynoff, a
People magazine reporter who alleged
he had “forced his tongue down my throat.”
This offers a glimpse into a growing trend of cases
involving employee allegations of “appearance discrimination” framed in terms
of laws that prohibit sex discrimination. A case in point is Lewis v. Heartland Inns of America (2010),
where a front
desk clerk at an Iowa hotel [pictured] was fired because she did not have the “Midwestern
girl look.” A federal appeals court ruled that this was unlawful sex
discrimination, reasoning that companies “may not base employment decisions for
jobs such as Lewis’ on sex stereotypes.” In another case, Lust v. Sealy, Inc. (2004),
a different federal appeals court found remarks characterizing conduct of a
woman employee as “you’re being a blonde again today” as evidence of illegal
sex stereotyping on the job.
But outlawing appearance discrimination is problematical for
several reasons. For one, appearance discrimination—or the flip-side,
appearance preference—is so deeply engrained in human behavior that economists have
measured what they call “beauty capital.” A study in 2002 led by
Daniel Hammermesh (“Dress for Success—Does Primping Pay?”) found that “good-looking
women, those in the top 35% of women arrayed by appearance, earn roughly 10%
more than the large majority of women whose looks are considered average or
below.” [If you are wondering, interviewers rated a “respondent's appearance on
a 5-point scale using …: (1) Very pretty; (2) Pretty; (3) Average; (4) Below
average; (5) Ugly. That, by itself, is a bit hard to accept given its
subjectivity and objectification of women.] Our everyday experiences might suggest
that this research has some plausibility.
The second challenge
in outlawing appearance discrimination is defining what it means. In the
wake of Trump’s harsh attacks on the appearance of his accusers, some people
have replied that his accusers are attractive. Whatever one might think on this
tricky subject, some local jurisdictions have enacted strong appearance discrimination
laws.
Santa Cruz has an ordinance that defines unlawful
discrimination as including differential treatment based on one’s height,
weight, or physical characteristics. San Francisco prohibits weight
discrimination. The District of Columbia prohibits discrimination based on
personal appearance. Therefore, employers operating in the above mentioned
localities must not make employment decisions based on the attractiveness or
physical appearance of an applicant or employee. For employers not operating in
those localities, there are some important requirements to consider before
making employment decisions based on appearance.
Adding to this complexity, norms about appearance are rapidly
changing. Some men wear earrings; some women wear their hair in a very short
cut; some people have piercings in places that others find distracting; some older
people die their hair to remove the gray, while other people wear a rainbow of
colors; and some people are transitioning from one sex to another.
Donald Trump’s “locker room defense” has offended some people
but also resonated with others. This implies that a significant group of people
have old-fashioned, sexist norms about beauty that include crude
objectification of women. Others find that any effort to rank attractiveness on
the basis of gender is offensive.
It seems odd that courts will be arbiters of these issues—but
it also seems inevitable.
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