Should It Be Legal To Fire the Unattractive?

A review of Deborah Rhode’s The Beauty Bias.

If you are anything like me, you left the theater after Sex and the City 2 last week and thought to yourself, “There ought to be a law.” A law against 40-plus-year-old women starving, sawing, and Spanxing themselves into brittle 27-year-old bodies. A law against a looks-based culture in which the only way for 40-year-old actresses to be equitably compensated is to have them look and dress like their teenage daughters. You can’t even look at Sarah Jessica Parker anymore without longing to sit on her chest and feed her croissants.

Meet Deborah Rhode, a Stanford law professor who proposes a legal regime in which discrimination on the basis of looks is as serious as discrimination based on gender or race. And no, she isn’t kidding. In a provocative new book entitled The Beauty Bias, Rhode lays out the case for an America in which appearance discrimination is no longer permitted as a sort of inevitability of human nature. That means Hooters can’t fire its servers for being too heavy—as allegedly happened last month to a waitress in Michigan who says she received nothing but excellent reviews but weighed 132 pounds. And the top management at Abercrombie & Fitch couldn’t hold weekly meetings, as they allegedly did several years ago, at which photos of its sales associates were reviewed and purged for any sign of breakouts, weight gain, or unacceptable quantities of ethnicity.

Rhode is at her most persuasive when arguing that in the United States, the penchant to discriminate against unattractive women (and also short men) is as pernicious and widespread as bias based on race, sex, age, ethnicity, religion, and disability. She provides overwhelming evidence of bias against the overweight, the unattractive, and the aging. And while some of these cases may be covered under the Americans with Disabilities Act or race discrimination law, most are not. For the most part, we tolerate appearance-based discrimination as unfortunate but inevitable.

In a survey, college students said that they would rather have a spouse who is an embezzler, drug user, or shoplifter than one who is obese, reports Rhode. The less attractive you are in America, the more likely you are to receive a higher prison sentence, a lower damage award, a lower salary, and poor performance reviews. You are less likely to be married and more likely to be poor if you are not attractive. Given that, according to the American Obesity Association 127 million American adults are overweight, 60 million are clinically obese, and 9 million are severely obese, the scope of this problem is vast. Also, Miss Texas can gain only two pounds before they take away her crown.

Rhode’s case against age discrimination is compounded by the existence of a virtually unregulated beauty and diet industry (they make bras for preschoolers!?) and soaring rates of elective cosmetic surgery. She would like to see more regulation of beauty creams and diet pills that make outrageous promises of eternal gorgeousness. Rhode reminds us how Hillary Clinton and Sonia Sotomayor were savaged by the media for their looks and says it’s no surprise to learn that the GOP apparently paid Sarah Palin’s make-up artist more than any member of her staff during her run for the vice-presidency.

Critics such as Andrew Sullivan have claimed that if we create a legal regime in which we ban appearance discrimination, the next step will be legal protection of “the short, the skinny, the bald, the knobbly kneed, the flat-chested and the stupid.” But Rhode points out that there are already laws against appearance discrimination on the books in Michigan and six other counties across the United States, and they have not, in fact, resulted in an explosion of frivolous suits. In each jurisdiction, the new laws have generated between zero and nine cases annually. In Michigan, about 30 looks-discrimination suits are filed per year, of which on average only one is litigated. The unworthy cases will be weeded out by the cost and burden of litigation, she contends. Moreover, Rhode contends, the legal system will have taken a symbolic step toward greater tolerance that may have the effect of shifting social views, as did Brown v. Board of Education (with regard to race discrimination)  and Lawrence v. Texas (with respect to gay rights). You don’t need a flood of new litigation to change the culture, after all. One looks-discrimination complaint filed in 2002 by an overweight-but-fit Jazzercize instructor in San Francisco led to a national change in the fitness chain’s policy.

Of course, the problem with making appearance discrimination illegal is that Americans just really, really like hot girls. And so long as being a hot girl is deemed a “bona fide occupational qualification” for some types of employment, there will be cocktail waitresses fired for gaining three pounds and salespeople terminated for acne. And as Rhode admits, it’s not just American men who like things this way. In the most troubling chapter in her book, Rhode explores the feminist movement’s complicated relationship to the quest for eternal youth. And truth is that women feel good about competing in beauty pageants. They love six-inch heels. They feel beautiful after cosmetic surgery. (A feminist professor from Yale famously defended her surgically enhanced breasts with the claim that “I bought them myself.”)

Women cannot seem to escape the cycle that leads all of us to wish other women would stop shaving their legs or coloring their hair. It seems you just can’t succeed in public life if you look old in America. Rhode writes that of the 16 women in the U.S. Senate, who are between the ages of 46 and 74, not a one has gray hair. She cites one feminist icon after another who changed her mind about the evils of cosmetic surgery, hair color, and Botox the instant the sagging, graying, and wrinkling set in.

While appearance bias is certainly a massive societal problem with tangible economic costs, most of us—even women, and perhaps especially women—will perpetuate such bias each time we buy a diet pill or sneer at Elena Kagan for not dressing like Miley Cyrus. This doesn’t mean we shouldn’t work toward eradicating discrimination based on appearance, and Rhode is hopeful that small steps may have great impact. But it does mean recognizing—and well in advance of Sex and the City 3 (“Samantha discovers the Depends thong … “)—that the law won’t stop us from discriminating against the overweight, the aging, and the imperfect, so long as it’s those are the qualities we all loathe most in ourselves.

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