Why appearance-based discrimination isn’t illegal

Sure, you can hire only beautiful people. Just make sure your idea of beauty doesn’t clash with anti-discrimination laws.

Posted by Dawn Lomer in Discrimination, Ethics & Compliance, Human Resources on March 1st, 2012

It’s hard to deny that attractive people have certain advantages in life and that unattractive people are more likely to face discrimination. So it’s not surprising that attractive job applicants are more likely to get jobs, get promoted and make more money. What is surprising, though, is that there’s no law against it in most states, unless an unattractive person is being discriminated against on the basis of one of the protected categories. “Appearance” is not a protected category.

“I guess the big question is how do you define, then, what is attractive or what people think is attractive,” says Philip Miles, an attorney with Pennsylvania law firm McQuaide Blasko.

“I guess the big question is how do you define, then, what is attractive or what people think is attractive.”
“For example,” says Miles, “if an employer decides that they’re only going to hire a specific race, say only white people are attractive therefore we’re only hiring white people, then that’s obviously going to be race-based discrimination so it’s unlawful under Title 7.”

Appearance vs. Disability

He cites a case in which a woman who worked at Abercrombie and Fitch filed a lawsuit against the company for discrimination. She claimed that because she has a prosthetic arm, Abercrombie and Fitch felt she did not match their “look policy” and, therefore, she was relegated to the stockroom, where she didn’t serve the public. And while the case was presented as discrimination based on the employee’s appearance, it clearly fell into a protected category of discrimination based on the Americans with Disabilities Act.

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Abercrombie and Fitch isn’t new to these types of lawsuits, having already settled a huge claim for racial discrimination based on the same “look policy” it works so hard to uphold. Again, the company’s appearance discrimination overlapped with one of the protected categories and it paid the price.

“What makes appearance discrimination so hard is that people may think that they are just discriminating based on appearance and not a protected characteristic, but they may not realize they are relying on a protected characteristic in making that determination,” says Miles.

Know State Laws

He cites a case in which a woman who worked for Hooters in Michigan filed a lawsuit claiming that hooters had discriminated against her on the bases of her weight. According to her allegations, her weight of 132.5 pounds was considered too heavy for Hooters.

“It gathered a lot of attention and one of the reasons it did is because it brought to light that Michigan actually has a statute that prohibits discrimination on the basis of height or weight,” says Miles. “So while generally discrimination against someone on the basis of something like weight would not be unlawful, in Michigan it is.”

There can also be instances, points out Miles, when obesity reaches the point where it constitutes a disability. “If you’ve discriminated against somebody on the basis of their weight and their weight is at a point where it constitutes a disability, you could find yourself in a lawsuit,” he warns.

“The most important thing is to have a non-discrimination policy that identifies the protected characteristics and encourages reporting and complaints to management to allow them to address the issue.”


Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.