Politics & Policy

‘Appearance Discrimination’: The New Racism?

Basing hiring decisions on a person's looks is unfair. But should it be illegal?

Anti-discrimination law hasn’t been controversial for years, but recently it has returned to the public debate. In Kentucky, GOP Senate candidate Rand Paul touched a nerve by suggesting that the government shouldn’t have forced southern businesses to desegregate. And in her new book The Beauty Bias: The Injustice of Appearance in Life and Law, Stanford Law School’s Deborah L. Rhode says quite the opposite: that today we should expand anti-discrimination law to outlaw bias based on appearance.

Of course, one’s opinion about anti-discrimination law depends a lot on one’s opinion about the role of government. Those who tend toward Paul’s view — even those who concede that the Jim Crow South was an extreme case and an exception — will not be sympathetic to Rhode’s thesis. Liberals who think that every unfair decision by a business justifies government intervention will see things completely differently.

That’s a fundamental conflict that no one can resolve. But in thinking about The Beauty Bias, it helps to keep some key questions in mind: To what degree is “appearance discrimination” a problem? What solutions are available, and what tradeoffs do they pose?

PROBLEMS

As Rhode demonstrates, the social science is quite clear: Appearance, especially height in men and beauty in women, matters. Studies of all kinds have come to the conclusion that good-looking people fare better than ugly people, even in situations where appearance is completely unrelated to the task at hand.

In many cases, the discrimination is explicit, and most of the time, it’s legal. Businesses often seek to present a certain “brand” or “look,” and hire only people who fit in. They also impose grooming requirements that restrict self-expression and sometimes hold men and women to different standards.

These practices are largely a result of our natural tendency to prefer the beautiful over the ugly — a fact that Rhode, to her great credit, concedes, noting that some elements of attractiveness (symmetry, unblemished skin, hourglass figures for women) are human universals. But our tolerance of appearance discrimination compounds that tendency and encourages a variety of unhealthy behaviors and trends. Rhode rounds up the usual suspects to document our appearance obsession: Women’s anxieties about their looks often lead them into plastic surgery; those same anxieties make them easy prey for marketers of useless beauty products and weight-loss aids; women’s sports don’t get enough attention, and much of the attention they do get sexualizes the athletes; we focus way too much on female politicians’ fashion choices; the dolls we give little girls have physically impossible figures and are often dressed like whores; and so on.

That’s all well and good, but Rhode overstates her case sometimes — particularly when she tries, in various ways, to tie appearance discrimination to racial discrimination. She repeatedly asserts that Western beauty standards privilege those with European features, but she never confronts a body of research that suggests that we perceive biracial people, not whites, as most attractive. To keep her analysis consistent with her dubious assertion, Rhode analyzes black women’s quest for light skin and straight hair, but she does not once mention white women’s love of tanning — a $5-billion-per-year beauty-related habit that can cause skin cancer.

This thesis also gets her into trouble when, in a hilariously innumerate passage, she analyzes the results of the Miss America pageant. She expects us to find it damning that only one Jew and four blacks have won in the pageant’s 75 years. In fact, only 2 percent of the U.S. population is Jewish, meaning that even by random chance, you’d expect a Jewish winner only once every 50 years. Also, as she notes, blacks didn’t start entering the contest until 1970 — and as she doesn’t note, four winners in 40 years is 10 percent, just below blacks’ proportion of the population. (It is of course problematic that blacks didn’t enter the pageant until 1970, but there’s no reason to think this has anything to do with our standards of beauty, as opposed to our troubled racial history.) She also thinks it telling that a Hispanic winner had to attend classes to tone down her Spanish accent — while providing no evidence that a white contestant with a strong accent wouldn’t have been sent to such classes.

In addition to being inherently racist in some cases, Rhode argues, appearance bias is equal to racism in its severity. To demonstrate this, she uses surveys that ask people whether they think they’ve been discriminated against. This is hardly the most scientific measure, because unless discrimination is explicit (Boss: “You’ve gained weight. You’re fired.”), there’s really no way for people to tell why they’ve been treated badly. These surveys might be measuring people’s willingness to attribute their failures to other people’s bigotry as much as they measure actual discrimination. Nonetheless, other, better measures (such as the implicit-association test and wage-penalty research) do tend to support Rhode’s conclusion.

Rhode argues that because we prohibit racial discrimination, we should prohibit other forms of discrimination that are equal in severity. However, racial discrimination was much more severe five decades ago when we actually acted against it; today, we mainly just keep tweaking the laws we passed then. One could just as easily argue that since racism has declined to the point where it’s comparable to appearance bias, we should back off on anti-racism measures — especially ones, such as affirmative action, that themselves entail discrimination.

SOLUTIONS

Rhode offers many potential legal remedies for the problems she depicts. Some are relatively commonsensical, such as a requirement that people be given better information about plastic surgery and beauty products. But her boldest suggestion is her central one — which, again, is that we ban appearance-based discrimination.

She presents a muddled account of the tradeoffs this would entail. For example, she writes that there have been few lawsuits in the few places that have already banned appearance discrimination. Then she notes that even a few lawsuits can force an entire industry to change policies it had found beneficial (such as when the casinos in Atlantic City dropped their requirement that female workers dress provocatively). In her view, it’s the best of all possible worlds.

Maybe she’s right that banning appearance discrimination would force employers to change their policies, yet would not subject businesses to a torrent of expensive and frivolous lawsuits. But when envisioning a world in which appearance-discrimination bans are widespread, it helps to bear in mind the history of racial anti-discrimination law.

Let’s start at the beginning. The civil-rights acts were passed as a straightforward attempt to revolutionize the social structure in an entire region, a region that had refused to respect blacks’ equal citizenship. These acts were, in other words, a justified assertion of dominance by the rest of the country over the South. Rhode proposes essentially the same sort of program for appearance discrimination. She says that we should make no exception when customers demonstrably prefer workers who look a certain way — because that preference is what the government is trying to stamp out. One can debate whether this is justified, but we need to be clear that we’re talking about a top-down imposition of values by the state.

Further, while racial anti-discrimination laws initially worked to ensure equal treatment, they became increasingly onerous and indeed ridiculous. Hubert Humphrey promised he would eat the Civil Rights Act of 1964 if it ever created racial preferences, but lo and behold, it did. And now we forbid not only actual discrimination based on race, but also “disparate impact” — that is, discrimination based on other factors that happen to be correlated with race. It is now the official policy of the federal government that if different racial groups pass an employment test at different rates, the starting presumption is that the test is racist, and it’s up to the business to prove otherwise.

And, instead of offering to eat appearance-discrimination legislation if it ever gets out of hand, Rhode gives the concept a good shove down the slippery slope. She says that appearance discrimination should be allowed in cases where sexual attractiveness is a legitimate job qualification, but she defines that concept so narrowly that it’s comical: Hooters — a chain of restaurants whose mascot is a breast-eyed owl — doesn’t qualify. She likens modern men who want to stare at hot waitresses to Jim Crow–era southern whites who didn’t want to interact with blacks. Similarly but slightly more reasonably, she doesn’t think that gyms, which profit largely from women’s drive to lose weight, should be able to decide for themselves whether to hire overweight but healthy aerobics instructors.

Rhode also says that businesses shouldn’t be allowed to restrict “self-expression” without demonstrating “substantial business needs.” But why would businesses restrict self-expression in the absence of substantial business needs? Restrictions on self-expression can cost a company employees — when I worked at the local Kmart as a teenager, for example, two of my co-workers quit in order to save their nose rings. As a long-haired, bearded guy with no muscles or fashion sense, I’m sympathetic to the argument that the work you do, not the way you look, should be the key variable in employment decisions. But the fact is that rebellious styles of “self-expression” can be — in fact, are usually intended to be — offputting to the public. Businesses have to deal with both lost customers and quitting employees, so they are in the best position to make the tradeoff.

Again: Appearance discrimination is real, and it’s unfair. And The Beauty Bias — aside from its atrocious copyediting (“Michelle O’Bama”?) — is a serious and respectable explanation of the problem and the liberal solutions for it. But when debating these measures, even liberals need to maintain a healthy skepticism of the government’s ability to force the proper values on the nation without overreaching.

— NR associate editor Robert VerBruggen runs the Phi Beta Cons blog.

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