The Boston media stirred up a controversy this spring when they reported complaints from a popular Massachusetts coffee shop chain owner that the Equal Employment Opportunity Commission (EEOC) was on an unfounded “witch hunt,” investigating possible discrimination in the hiring practices of the chain known for its attractive young female baristas.

The reports said the EEOC had launched the investigation into Marylou’s Coffee even though it had not received a complaint of discrimination, spurred by TV commercials featuring pretty, perky white women wearing the chain’s pink shirts and black shorts.

Commentary in the media and blogosphere centered on two issues: whether the commission should take on beauty bias as a cause, and whether it should pursue cases based on commissioner charges, which are investigations that one of the five EEOC members initiates without a complaint from an injured party.

“Aside from whether it is a good idea to spend agency resources conducting an investigation where there has been no complaint, the EEOC’s big adventure raises a more troubling question: Is the EEOC trying to establish that it is illegal for an employer to prefer attractive employees over unattractive ones?” James McDonald, a partner at Fisher & Phillips, wrote in a newsletter.

EEOC officials won’t comment on reports that a commissioner launched an investigation at Marylou’s, nor will they confirm or deny that any investigation is underway. But they adamantly deny that the agency is seeking to extend discrimination protection to people who aren’t attractive and defend the use of commissioner charges as necessary to preventing employment discrimination.

“Commissioner charges are one tool in our enforcement capabilities and tend to be fact-driven by discriminatory practices and policies,” says Justine Lisser, an EEOC spokesperson. “We use them within the scope of our enforcement authority and do not view them as tools to write new laws or expand existing ones.” 

Subjective Judgments

Regardless of the EEOC’s intent, the Marylou’s investigation publicity has reopened debate over beauty bias. In recent years, polls and academic studies have addressed the question of whether attractive people have an unfair advantage in the workplace, and some have advocated extending protection to unattractive people under the Americans with Disabilities Act or Title VII.

According to Stanford University Law School Professor Deborah Rhode, a quarter-century of research shows that unattractive people earn lower salaries and are less likely to be hired and promoted regardless of whether looks have a relationship to their duties.

In a 2005 poll, the Employment Law Alliance surveyed 1,000 Americans; 33 percent said that in their own workplaces, workers who are physically attractive are more likely to be hired and promoted, and 16 percent reported being victims of appearance discrimination.

Rhode says the studies have found that when people are asked to rate an individual’s attractiveness, their responses are consistent regardless of their age, race, class and cultural background. Still, a major argument against banning appearance discrimination is based on the adage “beauty is in the eye of the beholder.”

Slippery Slope

A few federal cases have involved beauty bias practices that resulted in clearly outlawed age, sex, race and disability discrimination.

The legal issue dates back to the 1960s when airlines were challenged on their practice of hiring only young, attractive women as flight attendants. In Diaz v. Pan American World Airways, the 5th Circuit held in 1971 that being female is not a “bona fide occupational qualification” for being a flight attendant, and there was no justification for excluding males.

McDonald points out that that case does not address the issue of attractiveness, but rather whether the airline was illegally discriminating against men.

In 2004, the EEOC reached a $50 million settlement with Abercrombie & Fitch after challenging the retailer’s practice of only hiring people with a certain “look”—almost exclusively young, white males—as salespeople to promote its brand image. Again, the case rested not on whether the employer could base hiring on physical attractiveness, but rather on whether the company was discriminating against protected classes.

So though being unattractive is not a protected category, hiring practices framed in terms of appearance may be a cover for other types of discrimination, says Carol Miaskoff, the EEOC’s assistant legal counsel for Title VII.

“Hiring discrimination often is not clear or explicit,” Miaskoff says. “There often is a pretext. That said, we only look for discrimination on one of the bases prohibited by the statutes.”

Asked if an employer could legally hire based on appearance, as long as he did not exclude people from any protected category, Miaskoff pointed out such a policy could be a slippery slope because a hiring manager’s perception of attractiveness could be influenced by his background.

“If someone grew up in a culture where they never saw people wearing certain religious garb, and therefore doesn’t find it attractive, he could slip into not hiring people wearing that clothing, and that would be exclusion on the basis of religion,” she says.

Raising Consciousness

In the absence of federal protection, a handful of jurisdictions have passed their own legislation. Michigan bans discrimination based on weight and height, and Washington, D.C., includes “personal appearance” as a protected category in its anti-discrimination law. Other jurisdictions have local ordinances covering either weight and height or looks more broadly, according to Rhode.

McDonald suggests that recognizing appearance discrimination in federal law would increase the number of employees who unjustly claim discrimination.

“Many plaintiffs in discrimination cases fail to account for their own shortcomings and role in events that led to their dismissal,” he says. “To add appearance discrimination just adds another ground for people who fail at work.”

But Rhode, author of the book “The Beauty Bias: The Injustice of Appearance in Life and Law,” says the existing local laws have generated few complaints in part because potential plaintiffs don’t want say they are “ugly.”

“Experience with existing prohibitions on the basis of appearance show no evidence of the kind of frivolous suits that the critics cite,” she says. “Evidence of the low complaint rate suggests that the main advantage of a [federal] prohibition would be to raise consciousness and deter employers from making irrelevant characteristics the basis of decisions.”