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Hooters Hires Based on Looks. So Do Many Companies. And There's No Law Against It.
Gender

Hooters Hires Based on Looks. So Do Many Companies. And There's No Law Against It.

By Photo: Astrid Stawiarz/Getty Images Entertainment

Beauty may be only skin deep, but the costs of its pursuit go far deeper. We all know that looks matter, but few of us realize how much. Seldom do we recognize the price we pay in time, money, and psychological well-being, or the extend to which our beauty biases compromise meritocratic principles. That is not to discount the positive aspects of beauty, including the pleasure that comes from self-expression or the health benefits that result from actions prompted by aesthetic concerns. Nor is it to suggest that discrimination based on appearance is on the same footing as other social problems, such as poverty, rape, domestic violence, and unequal pay. But the costs of out cultural preoccupation with attractiveness are much greater than we commonly assume. 

Of all the major issues that the women’s movement has targeted, those related to appearance have shown among the least improvement. In fact, by some measures, such as the rise in eating disorders, cosmetic surgery, and dissatisfaction with body image, the problem has grown worse. Almost half of American women are unhappy with their bodies, a percentage higher than a quarter century ago. After money, appearance is women’s greatest source of dissatisfaction. Much of the reason lies in the guilt, shame, and discrimination that social pressures impose.

 

What then should we ask of society? Whatever their other differences, most women would rally behind an agenda that promoted more attainable, healthy, and inclusive ideals. Our aspirational standards should reflect greater variation across age, weight, race, and ethnicity, and our grooming requirements should reflect greater tolerance for diversity and self-expression. Judgments about appearance would be less important. Women would not be held to higher standards than men. Nor would women’s self-esteem be tied to appearance rather than accomplishment. Judgments based on attractiveness should not spill over to educational and employment contexts where they have no socially defensible role. More effort should focus on encouraging healthy lifestyles and addressing the weight-related problems that prompt discrimination.

In pursuing that agenda, an obvious place to start is to prohibit discrimination based on appearance. In one national poll, 16 percent of workers reported that they had been subject to such bias, a percentage that is slightly greater than those reporting gender or racial prejudice (12 percent). Most women do not believe that employers should have the right to discriminate based on looks. The reasons are straightforward. Such discrimination compromises principles of individual dignity and equal opportunity to the same extent as other forms of bias that are now illegal. Yet only a small number of jurisdictions explicitly ban discrimination based on appearance. What accounts for the difference in treatment?

To many observers, appearance discrimination seems a rational response to customer preferences. Employees’ attractiveness can often be an effective selling point, and part of a strategy to “brand” the seller through a certain look. According to a spokesperson for the Borgata Hotel Casino & Spa, its weight limits and periodic “weigh-in” requirements for “Borgata Babes” cocktail waitresses responded to market demands: “Our customers like being served by an attractive cocktail server.” Analogous assumptions evidently underpinned the order by a L’Oreal cosmetics store manager to “[g]et me somebody hot” for a sales position, Abercrombie & Fitch’s policy of hiring sexually attractive, “classic American” salespersons, and the preference by certain bars and restaurants for staff that are “young” and “trendy,” or not “too ethnic.” “So You Want to Hire the Beautiful,” ran the title of a Business Week column. “Well, Why Not?”

The reason is the one that courts have advanced in rejecting customer preferences as a defense to claims involving race or sex discrimination. Those preferences generally reflect and reinforce precisely the attitudes that society is seeking to change. During the early Civil Rights era, Southern employers often argued that hiring blacks would be financially ruinous; white customers preferred white employees. Airlines similarly defended their refusal to hire male flight attendants on grounds that male business travelers generally preferred being served by female stewardesses. In rejecting such customer preference defenses, Congress and the courts recognized that the most effective way of combating bias was to deprive people of the option to indulge it. By the same token, it should be illegal for employers to discriminate on the basis of appearance except where it is essential to the occupation, such as modeling, acting, or sexual entertainment.

The same logic applies to grooming codes. Courts have generally permitted sex-specific grooming requirements if they reflect accepted community standards, involve no fundamental rights, or impose no disproportionate burdens on women or men. But this permissiveness toward requirements such as makeup, high heels, and sexually alluring uniforms ignores the social costs of sexual stereotypes. Customers who want what a Hooters’ spokeswoman described as a “little good clean wholesome female sexuality” are no more worthy of deference than the Southern whites in the 1960s who didn’t want to buy from blacks, or the male airline passengers in the 1980s who liked stewardesses in hot pants. As long as Hooters markets itself as family-friendly and offers a children’s menu, it cannot credibly claim that it is selling sex rather than burgers, and that waitresses with cleavage are a business necessity.

A related justification for discrimination based on appearance is that it often reflects other relevant traits, such as industriousness, sociability, and good hygiene. Yet what is objectionable about many sex-specific appearance requirements is not that they prescribe neatness, which courts could allow under sex-neutral standards, but that they reinforce sex stereotypes and unnecessarily restrict self-expression. Neither empirical research nor common sense suggests that women who decline to wear nail polish or high heels are less industrious. Indeed, in the case against Harrah’s Casino, the bartender who lost her job for lacking appropriate makeup and styled hair had consistently received glowing evaluations from supervisors and customers during her 20-year service.

 

A final cluster of arguments against prohibiting appearance discrimination is pragmatic. To many commentators, the preference for attractiveness appears natural and immutable in a way that other forms of bias do not. Attempting to ban discrimination based on such deeply rooted preferences strikes these observers as impractical and imprudent. In their view, “some aspects of what we consider physically attractive are ... hardwired. ... [T]he taste for physical beauty is unfair. But legal intervention is unlikely to eliminate it.”

Some commentators have also worried that such intervention risks trivializing other more serious forms of bias. In their view, allowing appearance- discrimination claims under civil rights and disability laws will undermine these statutes’ effectiveness in assisting individuals with more severe disadvantages. Richard Ford voices a common objection:

[T]here are practical limits of human attention and sympathy. ... And a business community united in frustration at a bloated civil rights regime could become a powerful political force for reform or even repeal. ... The growing number of social groups making claims to civil rights protection threatens the political and practical viability of civil rights for those who need them most.

Mario Cuomo put the point succinctly in debates over a proposed New York law banning discrimination based on appearance. This was “one law too many.”

Part of the problem is that attractiveness and grooming standards fall along a continuum. How would employers or courts determine when an individual is unattractive enough to warrant protection? Critics worry that appearance discrimination laws will result in “litigiousness run wild,” impose “untold costs” on businesses, and erode support for other legislation prohibiting “truly invidious discrimination.” As one trial judge noted, courts “have too much to do” to become embroiled in petty grooming code disputes about where women can and can’t wear pants.

Although such concerns are not without force, neither do they justify the prevailing tolerance for appearance discrimination. An initial difficulty lies in critics’ assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritismthe preferences that individuals feel for those who are like them in salient respects such as race, sex, and ethnicityare also deeply rooted. Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, assumed that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. Legislation such as the Americans with Disabilities Act also has had powerful positive effects on attitudes about the capacities of disabled individuals. And in less than a decade, views on gay and lesbian relationships have shifted dramatically, partly in response to laws that have helped to publicize injustice and normalize same-sex orientation. Similar initiatives on appearance discrimination could result in similar shifts in popular opinion and practices.

Prohibiting such discrimination is also unlikely to erode support for other civil rights legislation. Jurisdictions with such prohibitions, including San Francisco and Santa Cruz, California, Madison, Wisconsin, and the District of Columbia, are not known for backlash against anti-discrimination policies. There are, to be sure, limits to how far these policies can be extended without diminishing their moral force. But no evidence suggests that we have reached that limit. Neither is it likely that prohibitions on appearance discrimination would unleash a barrage of loony litigation. The few jurisdictions that have such laws report relatively few complaints. Cities and counties average between zero and nine a year, and Michigan averages about 30, only one of which ends up in court. Given the costs and difficulties of proving bias, and the qualifications built into current legal prohibitions, their enforcement has proven far less burdensome than opponents have feared.

Of course, legal requirements that ask too much of human nature may lack moral authority and may undermine the legitimacy of legal institutions. But many laws that have been widely ignored or resisted at the outset have gradually acquired legitimacy and have reshaped public values. Indeed, much of American civil rights legislation is a case in point. Although stigma and evidentiary difficulties will prevent most victims of appearance-related bias from coming forward, the same is true in other discrimination contexts. Even laws that are notoriously underenforced can serve a crucial role in influencing public norms, deterring violations, and affirming social ideals.

Law can also do more to address misleading and risky cosmetic and weight loss products. Traditionally, as a Federal Trade Commission official acknowledged, “appearance-enhancement claims ... [have not been] high on our prosecution list.” Rather, government agencies have relied on public education and efforts to encourage media voluntarily to decline advertisements making fraudulent claims. Such approaches have proven demonstrably inadequate. Also worrisome are the ads for “cosmecuticals”cosmetic products that include chemicals that aren’t regulated by the federal Food and Drug Administration. Government agencies need more resources and authority to protect consumers, as well as stiffer sanctions for misleading claims. 

No one advocating change in American attitudes toward appearance should be naïve about all that stands in the way. Discrimination on the basis of looks is deeply rooted and widely practiced, and there are obvious limits to how much legal nad policy strategies can affect it. But the same has been true for other forms of discrimination. And the last half-century leaves no doubt that legal prohibitions and public activism can promote significant change. Surely the values at state are worth the effort. The kind of attention that women once gave to the state of their souls they now give to the state of their bodies. Too often, the result is far from constructive. The financial, psychological, and physical price of appearance demands closer attention and collective action. Appearance must be seen not only as an aesthetic issue, but as a legal and police one as well. 

Adapted and reprinted from WHAT WOMEN WANT: An Agenda for the Women's Movement by Deborah L. Rhode with permission from Oxford University Press. Copyright © 2014 by Oxford University Press.

 

Deborah L. Rhode is the Ernest W. McFarland Professor of Law and Director of the Stanford Center on the Legal Profession.

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