Challenging Appearance Discrimination: Social Ideals and Legal Remedies

Cover: Oxford University Press

By RHODA FENG

February 6, 2011

The Beauty Bias: The Injustice of Appearance in Life and Law by Deborah L. Rhode is a critical book about a topic that has not been taken seriously enough: appearance discrimination. Rhode, a Stanford law professor, criticizes “appearance-related practices without criticizing the women who find them necessary.” She systemically exposes the ineffectuality of many beauty products; decries women’s pursuit of unattainable ideals and the double standard that such behavior compounds; and ultimately makes the case that law, in conjunction with social reform, can successfully redress appearance discrimination in employment, education, housing, and public accommodation.

Rhode’s book responds to Richard Thompson Ford’s The Race Card: How Bluffing About Bias Makes Race Relations Worse. Rhode references Ford’s book several times for the sole purpose of disputing his claims. Ford asserts that because crucial differences exist between appearance discrimination and racial discrimination, it would be improper to use one as an analogue of the other. Whereas one’s physical appearance (e.g. dress, weight) is mutable, he argues, one’s race – like one’s sex – is not. He claims that a short person would have been more successful at securing employment in the 1960s than a black person would have, since bias against short people paled in comparison to racism. Ford also argues that some employers have real grounds for firing or not hiring physically unfit candidates, but that no employer could justly dismiss workers because of their skin color, as that trait has no bearing on any objective job qualification.

Whereas Ford argues that “looksism” is intractable, Rhode contends that unless attractiveness is a “bona fide occupational qualification,” employers should be barred from discriminating in its favor. Currently, civil rights law prohibits discrimination based on sex, race, ethnicity, religion, age, and physical disability. Appearance discrimination is illegal in only one state (Michigan) and six locales: San Francisco, the District of Columbia, Santa Cruz, Madison, Urbana, and Howard County. Rhode points out that in these jurisdictions, allegations of appearance discrimination often could have been brought to court on the basis of other forms of discrimination, such as race, gender, disability, and sexual orientation. Some might object, then, that legislation banning appearance discrimination will merely create a welter of overlapping statutes. Rhode argues otherwise. All too often, she says, judges grant such wide latitude to employers’ regulations that bias suits are summarily dismissed. Moreover, antidiscrimination laws have failed to protect the rights of an obese man who was denied a job as a McDonald’s cook; African American women who wanted to wear cornrows to work; or Sikh employees who wanted to “wear turbans or beards.” Passage of anti-looksism laws will force the public to accept higher standards of worker treatment.

The annals of some antidiscrimination laws hold special significance for Rhode’s case. In particular, the laws banning discrimination on the basis of race and sex serve as archetypes for her proposed reform. In the Civil Rights era, courts prohibited Southern employers from denying work to blacks because of the alleged preference of white customers for white employees. “Congress and the courts recognized,” Rhode writes, “that the most effective way of combating prejudice was to deprive people of the option to indulge it.” Between the 1960s and 1980s, airlines defended their practice of selecting “attractive female flight attendants,” arguing that the preferences of their predominantly male passengers justified their sexist occupational requirements. But courts once again struck down the argument for customer preference, reasoning that attractiveness did not constitute the “essence” of a flight attendant’s job. The disavowal of customer preferences, Rhode argues, should also be applied to cases involving appearance discrimination.

Even though law may be unable to immediately alter the attitude of citizens, it can forcibly alter their behavior. Changes in attitude may very well follow. Here, Rhode looks to Brown v. Board of Education; the initial response to the Supreme Court’s ruling prohibiting racial segregation in public schools was about evenly divided, but half a century later, a great majority of Americans oppose segregation, and the Court’s decision is regarded as a national triumph. Rhode also declares that support for gay couples has risen, “partly in response to laws that have helped to publicize injustice and normalize same-sex orientation.” As these examples illustrate, entrenched prejudices are neither ineradicable nor venial.

To date, “no jurisdiction [with appearance discrimination laws] has experienced the flood of frivolous claims that commentators have anticipated.” Yet, with such a small sample size (one state and six locales), it is hard to accurately predict the effect of a federal law banning appearance discrimination, and Rhode wisely avoids extrapolating too broadly from limited data. To bolster her argument for the imposition of anti-looksism law, she looks to foreign legal systems. In France and Germany, it is more difficult for employers to get away with bias than it is in the United States; in those countries, judges defer more readily to employees’ “privacy, dignity, and self-expression.” In Germany, dress codes are “codetermined” by “management and elected worker councils” so that restrictions are less arbitrary. In the Australian state of Victoria, which outlaws appearance discrimination, formal complaints are infrequent. Though there is not an abundance of research and published decisions on appearance discrimination in these countries, Rhode suggests that legislators in the U.S. can nevertheless learn much from the European paradigms.

Besides the creation of federal or state laws barring appearance discrimination, Rhode tenders other strategies for reform. For one, victims of appearance discrimination will vastly benefit from broader interpretations of constitutional and statutory provisions. Rhode would like judges to be more invested in the protection of individuals’ rights and more assertive in punishing practices that reinforce appearance-related bias and disabling stereotypes. Judges should not, for example, be so unconscionable as to demand evidence of the greater cost imposed on female personnel by dress and grooming regulations that exempt their male counterparts. Likewise, a more expansive interpretation of disability law will assist not only the morbidly obese that suffer from a physiological disorder (under 5 percent of obese individuals), but also the overweight individuals who have traditionally been refused statutory protection because they are not “sufficiently impaired.” Restrictions on weight and other phenotypical characteristics should no longer serve as proxies for appearance discrimination.

While there are numerous strengths of The Beauty Bias, its major weakness is its treatment of women’s magazines. An entire section of the book is devoted to the side effects of reading such magazines (i.e. low self-esteem, heightened anxiety, disordered eating, etc.), and Rhode provides copious examples of articles preoccupied with superficial notions of beauty. While women’s magazines certainly are riddled with articles on fashion, beauty, and relationships, they are by no means exclusively concerned with these facets of women’s lives. Harper’s Bazaar, for instance, has run articles on a female journalist’s 100-day ordeal in an infamous Tehran prison and an activist’s fight to end female genital mutilation. Moreover, in The Beauty Myth, Naomi Wolf writes that “criticism of the beauty myth is found in [women’s magazines] more often than anywhere else…the most lightweight women’s magazine is a more serious force for women’s advancement than the most heavyweight general periodical.” The earliest women’s magazines played no small role in cultivating female empowerment and disseminating feminist ideas, and some of the most successful and influential magazines were edited by women. In overlooking the importance of women’s magazines, Rhode denies them agency in shaping vital legal and social affairs.

Rhode does not categorically demonize the media; she concedes that it has spotlighted issues of appearance bias and, in so doing, has prompted the passage of legislation barring such discrimination as well as the modification of company policies. In some cases, plaintiffs received substantial settlements thanks in part to support generated by media publicity. Still, Rhode indicts advertisements that subvert positive messages of embracing natural beauty and argues that government and state enforcement agencies are in dire need of “additional resources and stiffer sanctions to combat misleading [advertising] claims.” She repeatedly reminds us of the statistical failure of diets (only 5 percent of dieters manage to sustain weight loss for more than five years) and of the fact that Americans spend (or squander) 58 billion dollars each year on diet aids and cosmetics. At the same time, Rhode applauds initiatives of the Federal Trade Commission, such as its “Red Flag” campaign, which guides media outlets in screening dishonest or deceptive weight loss advertisements; its “Big Fat Lie” initiative, which targets companies making unqualified weight loss claims; and its “Weighing the Evidence in Diet Ads” brochure, which alerts consumers to fraudulent sales pitches.

The Beauty Bias underscores several themes that writers like Naomi Wolf and Jean Kilbourne have canvassed; it even shares its title with a book by Bonnie Berry. Its innovation lies in seeking a legal remedy to the pervasive problem of appearance bias. The point of writing this book, Rhode insists, is not to supersede more serious issues confronting women such as rape, poverty, the wage gap, and insufficient child care. It is rather to mitigate the injustice of appearance discrimination through law as more pressing issues are concurrently addressed. Personal prejudices may persist, but The Beauty Bias addresses some of the most pernicious institutionalizations of prejudice in a new light and points the way to progressive change.

Rhoda Feng is currently a student at Stony Brook University. She is a contributor to Broad Recognition.

This article does not necessarily reflect the views of Broad Recognition.