In the Eye of the Beholder

Q: I have applied to several retail jobs recently and have been turned down. I’m overweight and have noticed that stores always seem to hire men and women who are thin and attractive. Is this discrimination? What can I do about it?

  – Concerned and Unemployed

   Seattle, WA

A: Excellent question! This is a very tricky area of the law. Appearance, in and of itself, is not protected under federal employment law. Appearance discrimination lawsuits have been filed under federal law, but have been done so under the guise of sex, race, color, or disability discrimination, with limited success. For example, Abercrombie and Fitch paid $52 million to settle a discrimination case that involved hiring tall, thin, white, blond people. If you are over 100 pounds overweight, you might fall under the protection of the ADA. In addition, some states and municipalities have laws specifically prohibiting appearance discrimination, so look into your local laws. Another option is to ask the employer directly why you were not hired; other applicants may have been more qualified and the hiring decision may not have been based on appearance at all. What most people don’t realize is that there’s nothing wrong with asking an employer why you weren’t selected for a job. As with many things, the actual reason for being rejected may be more innocent than the worst-case-scenario we’ve imagined.

Q: I believe I wasn’t selected for a job for which I interviewed last week because I am not attractive enough. The woman who interviewed after me was tall and thin and very leggy. When I looked around, I realized all the women they had working were really attractive. The men were nothing to write home about. If they’re judging all the women based on attractiveness, isn’t that a type of sex discrimination?

  – Distressed by Double Standards

    Seward, AK

A: What’s with all the tricky questions? This situation is significantly different from the first question. If the employer you interviewed with is really hiring women based on their attractiveness and not considering the attractiveness of the men it’s hiring, then this could be sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Title VII says that an employer cannot classify its employees or applicants in a way that is different for one sex than for the other. In your case, it could be that women are measured by an additional requirement than men: being attractive. This could have a disparate impact on female applicants or employees. In other words, it could be that women were more negatively impacted than men, because fewer women were hired after all the unattractive ones were weeded out. Your employer may try to argue that attractive women are necessary for the job or consistent with a business necessity, but that’s very rarely a legitimate excuse for a practice that appears to be discriminatory. It’s always best to try to find out the employer’s reasons for the decisions it has made.

According to the American Society for Aesthetic Plastic Surgery (ASAPS), the price tag for cosmetic procedures performed in 2021 was approximately $14.6 billion.

(This article was originally published in the column Watercooler Counsel. It has been included here with minor updates.) 

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