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APPEARANCEUNDER TITLE VIIIDISCRIMINATIONBEAUTY IS IN THE EYE OF THE EMPLOYERPRESENTSBYName"I Think There Is Beauty In Everything. What Normal People Would Perceive As Ugly, I Can Usually See Something Of Beauty In It."-Alexander McQueen -HHISTORYthe protections of TITLE VIIIt shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals race, color, religion, sex, or national origin.Title VII permits appearance based policies unless those policies implicate a protected category. Unattractiveness alone does not warrant protection under Title VII.Acceptable: dress codes, grooming requirements, and other appearance based policies. CONSISTENCY IS KEY!!!OTHER PROTECTIONS1ADACannot discriminate against qualified employees regarded as disabled with or without need for reasonable accommodations. Relates to appearance in disabilities such as cosmetic disfigurement. 2ADEAProtection for all employees over the age of 40. Although ADEA claims do not directly relate to appearance, if an employee was fired because she looked too old the employee would have a cause of action. Intertwines with Title VII because many claims include sex, race, age, and appearance.3STATE AND LOCAL STATUTESMichigan- only statewide statute; Washington D.C.; Santa Cruz, CA; Madison, WI; Urbana, IL; Howard County, MD; San Francisco, CA.ADA- includes employers false opinions in regards to employees disability that relate to the ability to do their job. *PERCEIVED AS IMPAIRED IN THE MAJOR LIFE ACTIVITY OF WORKING** mainly OBESITY casesState and Local Statutes have seen little activity (0-9 cases a year on average) and those cases that have arisen could have each been brought under either Title VII, ADA or ADEA because they included categories such as gender, age, race and disability.- MICHIGAN: appearance based factors such as height and weightEMPLOYER DEFENSESUnderTitle VIIBFOQ:Bona Fide Occupational QualificationWhen a business chooses to discriminate on the basis of religion, sex, national origin, or age and employer can establish a bona fide occupational qualification BFOQ IF it is reasonably necessary to the normal operation of that particular business or enterprise.

Employers cannot use the BFOQ defense in RACE discrimination cases. Race is not and cannot be a occupational qualification because there is no way that someones race makes them better qualified.

BFOQ also available under the ADEA.Must prove: 1. direct relationship between protected class and ability to perform job. (must actually be considered in hiring process) 2. the req. characteristic goes to the very essence or goal of the business.(Good faith not enough)Courts rarely allow the employer to claim customer preference when trying to prove that it is reasonably necessaryDiaz v. Pan Am: customer preference constructed narrowly as the company being unable to perform the primary function or service it offers. (in this case, taking their customers to and from a location via airplane) You can take the customers preference and feelings into consideration but it cannot be the exclusive reason to discriminate against a protected class. TIMELEGISLATIVE1970sAirlines being sued under Title VII for not hiring men, firing married or engaged women, and implementing height, weight and age restrictions on employees. 1980sCraft v. Metromedia the court held that for employers to use females sexuality for marketing purposes they have to select employees with this in mind and regulate their appearance at work. 1990sGrooming policy in Blockbuster did not violate Title VII. Other cases regarding grooming policies upheld as long as there was no unfair burden on either gender to conform.1970s: Pan Am case (customer preference regarding hiring only females for stewardess positions)- Refusing to hire males because of customer preference or advertising and image based on sex appeal for predominantly male clients is NOT a valid BFOQ.1993: Nevada court ruled that attractiveness and sex appeal are too vague to set standards upon.Harper v. Blockbuster Entertainment Corp.,: short hair for men okay

LINEHISTORY2000sHarrahs casino case regarding the grooming policy and disparate impact on women.NOWAppearance discrimination not protected unless discrimination is coupled with one of the protected classes.2000s: While the Hub decision seems to make sense at first blush, it is somewhat difficult to reconcile with the cases allowing different dress codes for men and women concerning hair length, earrings and makeup. It could be argued, for example, that tattoos historically were worn mainly by men, just as long hair and earrings traditionally were worn by women. One can envision a court in the future holding that a policy prohibiting men from wearing long hair, make-up and earrings is an outdated gender stereotype. Cf. Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) (discussed infra.).

REPRESENTATIVE CASELAWUnited Airlines1Hooters CaseLOREAL Case A&F Case234United Airlines: sex based discrimination because the employee was a women about to be married and was fired but males were allowed to be married without being fired.

Hooters case: Were required to pay damages but were not required to change their policy and hiring criteria for their Hooters girl job which primarily includes waitressing.

LOREAL Case: Supreme Court of CA ruled that employers actions did constitute an adverse employment action because they were consistent and directly connected to her disagreement in firing the other employee for being unattractive and that the actions would negatively effect her career.

A&F case: Gonzalez- Look policy was revised and made public and as part of the settlement they were required to incorporate more minorities in the advertising campaigns and retail stores.

INDUSTRIESFASHIONFILMSTELEVISIONIndustry based on aesthetic design, appearance, and beauty. The customers buy the products to enhance their appearance Models have height and beauty requirements and weigh requirement is inferred from the size of the apparel.Actors and actresses are hired to portray a character and play a specific role. Some are written in a way that requires the appearance to be very specific and those decisions are made during casting.Television shows are similar to films because they require a specific portrayal to convey the essence of a character which is usual central to the shows plot. TV news broadcasters are also within the group of employees whose looks are heavily scrutinized .

*Barro: the only meaningful measure of productivity is the amount a worker adds to customer satisfaction and to the happiness of coworkers. Says appearance in some industries is equivalent to intelligence in others. effectively throw away national product by diverting the resource of looks from its most productive use.

Greenhouse: a goodlooking workforce can be an important asset in the competitive retail industry

Entertainment cases hardly ever brought because they dont want to be blackballed. With the exception of pregnancy case against Spelling Entertainment Group. Melrose PlacePUSH FOR PROTECTIONMany proponents of protection for appearance discrimination think it should be expressly stated as a protected class in Title VII. Title VIIIndividual StatuteFleener says appearance is objective and measurable.Other proponents think that there should be a statute similar to the ADA or ADEA for appearance discrimination because it is offensive to societys utopian goals.Standard

FACIAL SYMMETRY Research

PROBLEMS Subjective JudgmentPhysical Appearance VaguenessFloodgatesIf there were to be a protection for appearance discrimination, the courts would then have to decide who qualifies as pretty or ugly. This is subjective and will lead to varying decisions and overall inconsistency in the law.What is physical appearance? Is it just height and weight or is it inclusive of facial distortions? What about tattoos and piercings or too much or too little makeup?Post says it best, the logic that flows from protecting racial and gender discrimination falls flat when applied to appearance. Where will the line be drawn? Will intelligence based discrimination be next?There are several problems with creating specific protection for discrimination based solely on appearance.Inherent Social BiasIt is not the job of Title VII or any other discrimination law to fix every social bias. This is especially true when it comes to appearance because although scientists and researchers can prove that it exists, there is not a place in history or trigger that gives evidence as to how it started. So if we dont know how it started, how can we attempt to fault people with a natural reaction to others?POST arguments - Dion: we still don't know why it happens so why are we blaming ERs for something we don't know the reasons for or how to change if it is inherent.-Hills: Government officials will presumably be affected by the same beliefs and unconscious prejudices that affect society at large. Why, then, should we rely on such officials to determine which social inequalities are unjust? Rhodes claims that the 9 jurisdictions where appearance discrimination is protected prove that there wouldn't be an excess of litigation but that is wrong for two reasons:Small sample sizeOver inclusiveness is more of a problem concerning excess litigation because the guidelines are too vagueSUCCESS15%PEOPLEResearch shows that 10-15% of males and females who are considered attractive out-earn their homely counterparts.So attractive people are more successful than their homely friends?

This may seem unfair but it is all a matter of perspective. Researchers do show a higher rate of what Americans would consider success in people who are considered attractive but is that because they are attractive or are they attractive because they are successful?

Though there is a correlation, scientists cannot confirm which is the cause and which is the effect. CONCLUSTION

forDressSuccessAppearance is still not protected by Title VII or any federal law. It likely will not be protected because of the trouble with defining it. This is a good thing though because it remains true to the goals of Title VII and leaves the social change to happen among society. If society changes, then that is the time to reevaluate.