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Appearance matters — at work and in life. Researchers at the University of Alberta, after observing more than 400 parent-child interactions occurring at supermarkets, determined that less-attractive children were less cared for by their parents. The research team leader connected this to evolution, suggesting that better-looking children get better care because they carry a more desirable genetic legacy. While some challenge the validity of this “supermarket science,” other sources support the view that appearance plays a critical role in how people are treated by other people. Studies focusing on the workplace have found that Fortune 500 chief executive officers are, on average, taller than the average American, and that workers who are tall, slender and attractive earn more money. If appearance plays an important role in our evaluations of other people, and attractiveness pays dividends in the workplace, is that a social reality that exceeds the reach of the law or a form of invidious discrimination that should be banned? The case law goes both ways. The American Heritage Dictionary defines “lookism” as “discrimination or prejudice against people based on their appearance.” Apparently adopting the view that lookism is invidious, the District of Columbia’s anti-discrimination law bans employment decisions based upon “personal appearance” to the same degree as those based on race, color, religion, age and sex. THE ‘ABERCROMBIE & FITCH’ CASE WAS A MILESTONE The high-water mark for appearance discrimination may have been reached in the lawsuit against Abercrombie & Fitch brought by the Equal Employment Opportunity Commission, EEOC v. Abercrombie & Fitch Stores Inc., No. CV-04-4731, SI (N.D. Calif. 2004). The clothier had sought to promote an “all-American” image and was accused of violating Title VII of the Civil Rights Act of 1964 by maintaining recruiting and hiring practices that favored white males and excluded minorities and women. The EEOC lawsuit was resolved by a consent decree that provides for payments of $50 million and significant changes to the way the company recruits and hires employees, makes promotion decisions and assigns jobs. The “all-American” image was seen as discriminatory, as the lawsuit alleged that minorities were encouraged to apply for positions in stockrooms rather than for ones in which they would interact with the public. The consent decree, however, goes beyond prohibiting use of appearance standards as a subterfuge for discriminatory job assignments, and requires as well that the company’s marketing materials better reflect racial and ethnic diversity-something that even the EEOC acknowledged to be unprecedented. It can be questioned whether the EEOC exceeded its mandate to combat discrimination in employment by imposing mandatory revisions to a company’s marketing strategy. For decades, courts have recognized that a company may adopt a certain image that it wants to project to its customers and, to that end, impose dress and appearance standards on its employees without violating federal employment discrimination laws. Women have been required to wear overalls, though it contradicted their religious scruples against a woman dressing like a man (see Killebrew v. Local Union 1683, 651 F. Supp. 95 (W.D. Ky. 1986)); men have been required to keep their hair short though no such rule was imposed on women (see, e.g., Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974)); and women were required to wear their hair up to comply with the “Brooks Brothers” image that their employer wanted them to project (see Wislocki-Goin v. Mears, 831 F.2d 1374 (7th Cir. 1987)). This issue was revisited recently in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), cert. filed, No. 04-9716 (2005), where Kimberly Cloutier, a cashier at a Costco store, refused to comply with her employer’s dress code prohibiting facial jewelry other than earrings. Costco argued that such jewelry detracted from the “neat, clean and professional image” that the company believed its customers preferred. Cloutier told her supervisors that she would not comply because she considered constant display of her piercings to be a requirement of her religion, the Church of Body Modification, and her employment was terminated. The district court had found in favor of Costco, ruling that the employer had reasonably accommodated Cloutier by proposing that she either cover or temporarily replace her piercings while working. The 1st U.S. Circuit Court of Appeals, however, went further. It ruled that Costco had no duty to accommodate Cloutier in the first place because the accommodation that she had requested, an exemption from its dress code, would impose an undue hardship on Costco. The court was clearly mindful of long-established precedent that customer preferences cannot be used as an excuse for employment discrimination: Customer hostility, for example, is no defense to refusing to hire Hispanic salesmen. The court explained, however, that “it is not the law that customer preference is an insufficient justification as a matter of law.” Id. at 136. These two opposing positions on the use of appearance in employment decisions may be on a collision course in the forthcoming en banc review of the 9th Circuit’s decision in Jespersen v. Harrah’s Operating Co., 392 F.3d 1076 (9th Cir. 2004). A divided panel had rejected Darlene Jespersen’s Title VII claim after she was fired for refusing to comply with a new policy that set specific appearance standards for men and women working in specified positions. This policy required Jespersen, a bartender with nearly 20 years of experience at Harrah’s, to comply with certain sex-specific appearance standards, including wearing makeup to work. Jespersen refused, arguing that wearing makeup made her feel “degraded” and “forced her to be feminine.” The panel majority found that Harrah’s policy was no different from other policies applying gender-specific grooming and appearance standards that the 9th Circuit had previously ruled do not constitute discrimination on the basis of sex. The court noted that while sex-differentiated appearance standards that impose “unequal burdens” on men and women could be discriminatory, the challenged standards did not meet this test. Jespersen had argued that the “unequal burdens” test should be invalidated in light of the decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which, as interpreted by the 9th Circuit, had “held that an employer may not force its employees to conform to the sex stereotype associated with their gender as a condition of employment.” Although the court previously cited Price Waterhouse in upholding employees’ claims of harassment for failing to conform to sex stereotypes, it rejected the implication that “there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards.” Id. at 1082-83. The dissent objected strenuously, arguing that Jespersen “articulated a classic case of Price Waterhouse discrimination,” and reasoning that she was fired for refusing to conform to the sex stereotype that women wear makeup. The dissent concluded that “when an employer takes an adverse employment action against a plaintiff based on the plaintiff’s failure to conform to sex stereotypes, the employer has acted because of sex.” Id. at 1084. This broad interpretation of the sex-stereotyping theory of discrimination necessarily means that any appearance standards that impose different requirements on men and women are discriminatory per se. THE LIMITS OF TITLE VII IN ADDRESSING THESE ISSUES Perhaps there should be a law affording employees a right to express their self-image through their personal appearance at work. Perhaps, too, workers like Jespersen should not be required to wear makeup just because an employer wants its female bartenders to project a particular image. Does that mean, however, that Cloutier must be allowed to show her multifarious body piercings that are contrary to the “neat and clean” image that Costco has built into its company’s marketing strategy? Is correcting such perceived injustices really what Title VII was intended to do? U.S. employment discrimination law is premised on the belief that there simply are no relevant differences between blacks and whites, men and women, Hispanics and Anglos, Christians and Jews with respect to the qualities and characteristics that really matter (or that should matter) for the workplace, except for that small range of instances where, for example, sex (but never race) can be a bona fide occupational qualification. But appearance is different because appearance matters. How employees dress and groom themselves affect the image the company is trying to project to differentiate itself from its competitors in the eyes of — shall we say — “discriminating” consumers. And attractiveness sells. From the perspective of enlightened rationality, this may be benighted bias, but it also seems something embedded in the human condition. For this reason, appearance discrimination, unlike almost anything else in employment discrimination law, rises at the intersection of civil rights and social engineering. Michael Starr is a partner in the labor and employment group of Washington-based Hogan & Hartson, resident in New York. Adam J. Heft is an associate in that group, also resident in New York.

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