Appearance-Based Employment Discrimination: A Proxy for Gender Discrimination?

09/18/2017

Appearance-Based Employment Discrimination: A Proxy for Gender Discrimination?

By Bre Wexler

Introduction

Attractive individuals are afforded many benefits over their less-attractive counterparts in everyday life, such as more help,[1] increased cooperation from others,[2] more lenient sentences for crimes,[3] and even more space on sidewalks.[4] This is largely a result of the phenomenon known as the “beautiful is good” stereotype, which suggests that attractive individuals are perceived to be more sociable, friendly, warm, and competent than less attractive individuals.[5]  There is even some evidence that attractive individuals are perceived to be more intelligent and mentally adjusted than less attractive individuals.[6] It is no wonder, therefore, that the benefits received by more attractive individuals often carry over into the employment context as well.

Attractiveness and Gender

Research suggests that more attractive individuals are more likely to be hired than less attractive individuals,[7] and attractive candidates are offered higher starting salaries than less attractive candidates.[8] One recruiter even told Newsweek that this is the “new reality of the job market.”[9]
 
One of the primary factors that determines a person’s subjective evaluation of attractiveness is the extent to which the person’s appearance is in compliance with their perceived gender. In other words, males are typically perceived as more attractive when they have more stereotypically “masculine” characteristics (e.g., a broad jaw,[10] pronounced brow ridge,[11] and a wide nose and chin[12]), and females are perceived to be more attractive when they possess more stereotypically “feminine” characteristics (e.g., a thick mouth and upper lip,[13] smaller lower faces,[14] and prominent cheekbones[15]). When a job candidate’s perceived masculine or feminine characteristics are not in line with the perceived masculine or feminine nature of the job, gender bias results[16] (this is known as the “Lack of Fit” model[17]). This explains why male and female candidates receive lower ratings when being considered for an opposite-sex position.[18] 

Historically, attractiveness enhances the effects of the Lack of Fit model. In other words, men’s physical attractiveness proves advantageous for most types of jobs except stereotypically feminine positions. Similarly, women’s attractiveness increases their likelihood of being selected for stereotypically feminine jobs.

Why this is a Problem

Organizations have both a legal duty and an ethical duty to hire the most qualified candidate for a position, regardless of appearance- or gender-based characteristics, and most Civil Rights legislation has been enacted with this purpose in mind.[21] Title VII of the Civil Rights Act of 1964 clearly prohibits discrimination in employment on the basis of race, sex, ethnicity, national origin, and religion.[22] However, protections against physical attractiveness discrimination are much more limited. Michigan is the only state that prohibits discrimination on the basis of appearance generally, though not physical attractiveness specifically.[23] Washington, D.C., on the other hand, prohibits discrimination based on weight, height, and appearance in its Human Rights Act.[24] However, both the Michigan statute and the D.C. statute provide for exceptions so long as the discrimination is necessary for the business.[25] 

The lack of protection for physical attractiveness discrimination in employment is alarming considering that appearance-based discrimination may have even larger effects than other forms of discrimination because people do not try to correct for it.[26] In most cases, the only way to recover on a claim of attractiveness discrimination is for the discrimination to “fit” under another protected characteristic.[27] Most cases that link attractiveness and gender discrimination do so on a theory of gender stereotypes.[28] The findings on these cases are mixed, as the plaintiff must prove that the employer acted based on a stereotypical view of how men and women should look in the workplace.[29] Given the far-from-consistent success of plaintiffs asserting attractiveness discrimination claims under Title VII’s sex discrimination ban, it follows that employees may find a loophole to gender discrimination through the proxy of attractiveness discrimination.

Judicial Interpretation of Attractiveness Claims under Title VII

In some cases, plaintiffs have been successful in alleging attractiveness discrimination claims under Title VII’s prohibition of gender discrimination using gender stereotyping theory. In Price Waterhouse v. Hopkins, the Court upheld plaintiff’s sex discrimination claim.[30] There, a female senior manager was denied partnership because the partners involved in the promotion decision considered her to be too “macho” and in need of “a course at charm school.”[31] They advised her to “dress more femininely, wear make-up, have her hair styled, and wear jewelry.”[32] The Court agreed with plaintiff that her employer found her unsuited for the position not because of her qualifications or performance, but because her appearance did not comport with its preferred feminine stereotype.[33] 

Lewis v. Heartland Inns of America also found for plaintiff.[34] Lewis was a desk clerk at an Iowa hotel and received positive performance feedback from her supervisors.[35] However, the hotel director did not believe Lewis had the “Midwestern girl look” he believed was necessary to be successful in the position.[36] Lewis was fired, and she sued for sex discrimination under the theory of gender stereotyping.[37] The court of appeals reversed summary judgment for the employer, finding sufficient evidence that the employer had made an adverse decision based on a gender stereotype.[38] 

Males can also receive protection under Title VII in relation to appearance. In Nichols v. Azteca, the court found for plaintiff’s Title VII claim on the theory of gender stereotyping.[39] There, Antonio Sanchez’s coworkers consistently taunted him for looking and acting feminine.[40] The court overruled previous cases that failed to find that claims that a man should have a virile rather than an effeminate appearance constitute gender-based discrimination under Title VII.[41] 

In some cases, the plaintiffs are not so lucky. In Willingham v. Macon Telegraph Publishing Co., Macon Telegraph refused to hire a male applicant because he had long hair.[42] Although the plaintiff argued that this policy was not equally enforced against female applicants and was therefore discriminatory, the court reasoned that it was not clear that Congress intended to include all sexual distinctions in its prohibition of sex discrimination.[43]

Smith v. Liberty Mutual Insurance Co. relied on the decision in Willingham when finding that Title VII was not violated on the premise of non-gender conforming stereotypes.[44] Liberty Mutual refused to hire a male applicant because he was considered “effeminate.”[45] The court of appeals upheld the district court’s conclusion that this did not violate Title VII on the grounds that the applicant was not discriminated against because he is a male, but rather because he had attributes more generally characteristic of females.[46] This finding was in contrast to the 9th Circuit’s finding in Nichols, further elaborating on the inconsistent protections for appearance-based discrimination under the umbrella of Title VII.[47]

Finally, in Evans v. Georgia Regional Hospital, the court concluded that the plaintiff did not establish a plausible discrimination claim protected under Title VII when she experienced harassment and unequal pay at work as a result of dressing in a male uniform, wearing a low male haircut, and wearing male shoes.[48] While the court acknowledged that discrimination based on gender non-conformity could potentially be actionable under Title VII, the court reasoned that the plaintiff in this case did not provide enough evidence that she suffered discrimination.[49]

 Conclusion

Appearance-based discrimination is prevalent in employment contexts. While this form of discrimination is only legally protected in limited jurisdictions, it may serve as a proxy for gender-based discrimination – a protected class under Title VII. In other words, employers may evade liability for gender discrimination by discriminating on the basis of attractiveness. While this practice borders the legal bounds of Title VII, it crosses the ethical bounds of employment practices and Civil Rights legislation.

Bre Wexler*
Edited by Luke Jackson