Academic journal article Duke Journal of Gender Law & Policy

The Ugly Truth about Appearance Discrimination and the Beauty of Our Employment Discrimination Law

Academic journal article Duke Journal of Gender Law & Policy

The Ugly Truth about Appearance Discrimination and the Beauty of Our Employment Discrimination Law

Article excerpt

Bessie Braddock: "Sir, you are drunk."

Sir Winston Churchill: "And you, madam, are ugly. But in the morning, I shall be sober." (1)

President Abraham Lincoln, a master storyteller, considered himself physically unattractive, and he used his homeliness in his humorous stories. He told of an ugly man, some say he referred to himself, riding in the woods, when he encountered a woman riding on the narrow road. "As she passed, the woman looked at him intently and finally observed: 'Well, you are the ugliest man I ever saw.' 'Perhaps so,' admitted the unfortunate fellow, somewhat crestfallen, "but I can't help that, madam.' 'No, I suppose not,' agreed the woman, 'but you might stay at home.'" (2)


In the not-so-distant future, imagine a conference sponsored by a law journal, dedicated to the twenty-fifth anniversary of the enactment of the federal law that prohibits employment discrimination based on physical appearance. The keynote speaker for the conference begins by reminding the audience that a mere quarter of a century earlier there was no federal law that expressly prohibited discrimination in employment based on physical appearance. All the people attending the conference shake their heads in disbelief and disdain at that benighted state of the law. The speaker sets the stage for the conference by reciting the well-known history of how appearance-based discrimination in employment came to be banned.

At the beginning of the twenty-first century, American society was obsessed with physical appearance. Tanned, slim, muscular, svelte movie stars and "supermodels" adorned and dominated magazine covers, television screens, and websites. Moreover, the curvaceous became loquacious, and presumptively and presumptuously sagacious, as these icons of society pontificated on politics, religion, philosophy, science, and various other weighty subjects. High school and college kids sought to emulate these beautiful people by working out, eating little, taking fat-burning supplements, and applying all sorts of creams and gels to their bodies. Older folks, who had more money and more need of drastic help, did all the things the younger kids did, but they also paid surgeons to tuck, raise, tighten, increase, decrease, and otherwise alter whatever needed modification. (3) Some people were endowed by their Creator with beauty, but nothing justified a failure to pursue that holy grail; to be beautiful (or at least as beautiful as you could be), you just had to spend your time and money and devote your life to it. There was no greater calling. (4)

People began to realize that, in this Sodom and Gomorrah, so utterly consumed with physical appearance, employers were discriminating--that is, making employment decisions--based on physical appearance. Perhaps it had been occurring for years, but as the nation's collective consciousness and conscience became more sensitized, thinkers and policy makers became more concerned with this iniquity. Clothing stores were hiring young, shapely, beautiful people who had "the look" to be sales associates. Bars and restaurants were hiring pretty people. Beautiful customers who ventured into business establishments were at risk of being accosted by management and hired on the spot. (5) Some employers tried remediation when they had made the mistake of hiring people who were not particularly gifted in appearance, but who against all odds turned out to be good employees, by imposing grooming, clothing, and appearance standards. (6) Businesses were convinced that customers would buy what they had to sell if their employees were attractive. There were even tales of attractive law school graduates beating out the less physically gifted graduates for jobs as attorneys. Imagine: Lawyers thinking that attractive lawyers would be better lawyers. In American society, all worshiped physical attractiveness. For women, demands and expectations seemed to be greater than for men. …

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