In order to help him take down messages from his mother, George decides to hire a secretary. But fearing that he’ll never get any work done if he goes “down the tomato route”, George decides to do a complete 360 and rejects secretarial candidates for being too attractive. He only considers candidates based on their work efficiency and ability. Is denying someone employment because they are too beautiful against the law? Could Miss Coggins and the other denied applicant sue George and the New York Yankees for appearance discrimination?
Discrimination based on physical appearance is not expressly prohibited by either New York or Federal Law. Instead, Federal and New York statutes protect certain classes of people from discrimination, based on race, age, religion, sex, or national origin amongst a few others. But being so physically attractive that you cause people to forget their own name is not such a protected class. The Supreme Court has also not directly addressed appearance discrimination either. So in order to bring a suit, Miss Coggins would have to fit her situation into one of the statutorily protected classes. For Miss Coggins, she could claim discrimination based on sex or age.
As an earlier post explored in “The Butter Shave,” the first step in presenting a suit of employment discrimination under the Mcdonnell Douglas framework is for the plaintiff, Miss Coggins in this case, to satisfy the 4 elements of the prima facie case of discrimination. They are:
- That the plaintiff is of a protected class.
- Was qualified and applied for the position.
- Despite the qualifications, was rejected.
- After being rejected the position remained open and the employer sought out prospective employees that had the same qualifications as the plaintiff.
Miss Coggins will have no trouble showing these elements here. (1) She could at least claim she was discriminated against based upon the protected classes of sex or age, (2) she clearly had the requisite job qualifications since she types well and is proficient in IBM and Macintosh, (3) George rejected her and (4) he hired someone else.
The next step in the proving a discrimination case is to give the employer the opportunity to prove that the employment decision was not actually based upon discrimination. And here, George and the Yankees will have no trouble proving that neither sex nor age was considered in the hiring process. George interviews three candidates: Miss Coggins, an unidentified woman, and Ada, whom he ultimately hires. All 3 applicants are white and female, and they seem to be of the same age. We don’t know anything about their religious practice, and it’s safe to assume that they are all American. Therefore, it is going to be extremely difficult for Miss Coggins to prove that she was discriminated against based upon any of the protected classes, because all of the applicants were, essentially, the same.
Therefore, the only way for Miss Coggins to win is for her to argue that even though physical appearance is not a statutorily protected class, a court should still consider discrimination based upon an applicant’s luscious, ravishing beauty to be illegal. However, allegations of beauty discrimination can be found by the courts to not be violative of either Federal or State law. An Iowa court ruled that an employer could fire his secretary when his wife demanded he do so out of fear he may cheat on her. The court’s rationale was that the decision was not based on personal appearance really, rather it was based on the workplace relationship between the two parties. Courts will defer to employer managerial decisions when they are based on legitimate workplace issues, as long as they are bona fide occupational qualification and not pretenses for discriminatory action. This is why courts across the country have often upheld grooming and appearance policies in the workplace so long as they do not impose an unfair burden on one sex over the other.
Even if Miss Coggins could make out a legal argument that she was being discriminated against, George could offer a bona fide occupational qualification that appearance, or rather the lack of it, is absolutely necessary for the job. Since George was trying to avoid the sure-fire sexual harassment suit when he chose his secretary, he’s allowed to hire someone he won’t be tempted to keep in for late nights at the office.
Since beauty discrimination is not prohibited by New York or Federal law, and George seems to have a bone fide occupational qualification for not hiring Miss Coggins, George and the Yankees would likely win on any discrimination suit brought against them by the denied applicants.
While some jurisdictions have local ordinances that protect against all forms of appearance discrimination, employers still always have the defense of demonstrating that appearance is a bona fide occupational qualification for their particular workplace environment. Ultimately though, for Miss Coggins to bring a successful suit, she is going to have to petition either New York State or the Federal government to craft new legislation protecting beautiful women from discrimination. Some studies have noted that for a woman, unlike getting out of a speeding ticket, beauty may actually be a hinderance for finding employment. But whether American legislatures will ever find that to be doable remains an open question.