Abstract

This essay considers the topic of appearance-based employment discrimination. The essay introduces the topic by juxtaposing the “hot” story of the summer, the bank employee who claims that she was fired for “being too hot,” with Professor Deborah Rhode’s recently published book, The Beauty Bias: The Injustice of Appearance in Life and Law. In the essay, I argue that although appearance discrimination is one of the most common forms of discrimination in employment and other areas of life and generally is regarded as at least unfair and perhaps immoral, neither federal nor many state employment discrimination laws will be amended to cover appearance. The essay explains, however, that many claims that essentially are appearance discrimination claims have been fit under currently covered characteristics. The essay considers how such claims are fit under existing law and explains how such fitting is an appropriate stretching of the employment discrimination laws. I then use appearance discrimination as a mirror to reflect on some of the complexities and nuances in the current body of employment discrimination law, including the following: reverse discrimination; bona fide occupational qualification; antiretaliation; and the admissibility and relevance of evidence of plaintiffs’ appearance and peripheral conduct in discrimination cases. Finally, I examine what appearance discrimination reveals about the connection between employment at will and employment discrimination law.

Comments

60 Cath. U. L. Rev. 615 (2011)

Keywords

Appearance discrimination, reverse discrimination, Physical-appearance-based bias in employment, Sex discrimination in employment

Date of Authorship for this Version

2011

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