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Why looks are the last bastion of discrimination

We all know that appearance matters, but the price of prejudice can be steeper than we assume.

Consider Nikki Youngblood, a lesbian who in 2001 was denied a photo in her Tampa high school yearbook because she would not pose in a scoop-necked dress. Youngblood was "not a rebellious kid," her lawyer explained. "She simply wanted to appear in her yearbook as herself, not as a fluffed-up stereotype of what school administrators thought she should look like." Furthermore, many grooming codes sexualize the workplace and jeopardize employees' health. The weight restrictions at the Borgata, for example, reportedly contributed to eating disorders among its waitresses.

Appearance-related bias also exacerbates disadvantages based on gender, race, ethnicity, age, sexual orientation and class. Prevailing beauty standards penalize people who lack the time and money to invest in their appearance. And weight discrimination, in particular, imposes special costs on people who live in communities with shortages of healthy food options and exercise facilities.

So why not simply ban discrimination based on appearance?

Employers often argue that attractiveness is job-related; their workers' appearance, they say, can affect the company's image and its profitability. In this way, the Borgata blamed its weight limits on market demands. Customers, according to a spokesperson, like being served by an attractive waitress. The same assumption presumably motivated the L'Oreal executive who was sued for sex discrimination in 2003 after allegedly ordering a store manager to fire a salesperson who was not "hot" enough.

Such practices can violate the law if they disproportionately exclude groups protected by civil rights statutes -- hence the sex discrimination suit. Abercrombie & Fitch's notorious efforts to project what it called a "classic American" look led to a race discrimination settlement on behalf of minority job-seekers who said they were turned down for positions on the sales floor. But unless the victims of appearance bias belong to groups already protected by civil rights laws, they have no legal remedy.

As the history of civil rights legislation suggests, customer preferences should not be a defense for prejudice. During the early civil rights era, employers in the South often argued that hiring African Americans would be financially ruinous; white customers, they said, would take their business elsewhere. In rejecting this logic, Congress and the courts recognized that customer preferences often reflect and reinforce precisely the attitudes that society is seeking to eliminate. Over the decades, we've seen that the most effective way of combating prejudice is to deprive people of the option to indulge it.

Similarly, during the 1960s and 1970s, major airlines argued that the male business travelers who dominated their customer ranks preferred attractive female flight attendants. According to the airlines, that made sex a bona fide occupational qualification and exempted them from anti-discrimination requirements. But the courts reasoned that only if sexual allure were the "essence" of a job should employers be allowed to select workers on that basis. Since airplanes were not flying bordellos, it was time to start hiring men.

Opponents of a ban on appearance-based discrimination also warn that it would trivialize other, more serious forms of bias. After all, if the goal is a level playing field, why draw the line at looks? "By the time you've finished preventing discrimination against the ugly, the short, the skinny, the bald, the knobbly-kneed, the flat-chested, and the stupid," Andrew Sullivan wrote in the London Sunday Times in 1999, "you're living in a totalitarian state." Yet intelligence and civility are generally related to job performance in a way that appearance isn't.

We also have enough experience with prohibitions on appearance discrimination to challenge opponents' arguments. Already, one state (Michigan) and six local jurisdictions (the District of Columbia; Howard County, Md.; San Francisco; Santa Cruz, Calif.; Madison, Wis.; and Urbana, Ill.) have banned such discrimination. Some of these laws date back to the 1970s and 1980s, while some are more recent; some cover height and weight only, while others cover looks broadly; but all make exceptions for reasonable business needs.

Such bans have not produced a barrage of loony litigation or an erosion of support for civil rights remedies generally. These cities and counties each receive between zero and nine complaints a year, while the entire state of Michigan totals about 30, with fewer than one a year ending up in court.

Although the laws are unevenly enforced, they have had a positive effect by publicizing and remedying the worst abuses. Because Portnick, the aerobics instructor turned away by Jazzercise, lived in San Francisco, she was able to bring a claim against the company. After a wave of sympathetic media coverage, Jazzercise changed its policy.

This is not to overstate the power of legal remedies. Given the stigma attached to unattractiveness, few will want to claim that status in public litigation. And in the vast majority of cases, the cost of filing suit and the difficulty of proving discrimination are likely to be prohibitive. But stricter anti-discrimination laws could play a modest role in advancing healthier and more inclusive ideals of attractiveness. At the very least, such laws could reflect our principles of equal opportunity and raise our collective consciousness when we fall short.

Deborah L. Rhode is a Stanford University law professor and the author of "The Beauty Bias: The Injustice of Appearance in Life and Law."

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