James McDonald, Jr.
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Most of us prefer good-looking people to less attractive ones. Pharma seems to believe that doctors do, too. A recent New York Times article examined the industry's recruitment of cheerleaders, most of whom are attractive young women ("Gimme an Rx! Cheerleaders
Pep Up Drug Sales," November 28, 2005). In the article, Dr. Thomas Carli of the University of Michigan observes, "There's
a saying that you'll never meet an ugly drug rep." Hiring the beautiful might be good for business, but it also might be challenged
as discrimination in a court of law.
Until recently, employers have mostly been free to discriminate against the unattractive. In the United States, only a few
places, like the District of Columbia and Santa Cruz, California, have laws prohibiting discrimination in employment based
on physical appearance. Elsewhere, employers can factor looks into employment decisions without fear of reprisal.
Thinner and Cuter
Instead of relying on disability law, which failed in the "looks" lawsuits tried a few years ago, plaintiffs typically allege
sex discrimination today. And until recently, courts took a dim view of the claim that preferring a more attractive employee
to a less attractive one of the same sex constituted sex discrimination.
For example, in Marks v. National Communications Association (1999), a 270-pound telemarketer sued after she failed to obtain a promotion to an outside sales representative. One of her
supervisors told her: "I've told you, [in] outside sales, presentation is extremely important. Lose the weight and you will
get promoted." The plaintiff claimed that another telemarketer had obtained the promotion because she was "thinner and cuter."
The sex discrimination lawsuit attacked what she described as "improper and discriminatory stereotypes" of the "acceptable
appearance of a female" on the part of her employer.
The court threw out the case. It observed that "discrimination based on weight alone, or on any other physical characteristic
for that matter, does not violate Title VII of the Civil Rights Act of 1964 unless issues of race, religion, sex, or national
origin are intertwined." The court found that the plaintiff failed to prove her case because she could not identify any overweight
men who were working as outside sales representatives.
"Get Me Somebody Hot"
A California Supreme Court decision last year, however, suggested that employers' preference for more attractive employees
over less attractive ones of the same sex might amount to sex discrimination.
In Yanowitz v. L'Oreal USA, the plaintiff was a manager in a fragrance and cosmetics company who refused her boss's order to fire a saleswoman because
he found the woman insufficiently attractive. After a walking tour of a department store, the plaintiff's boss told her he
thought the sales associate was not "good looking enough," and he ordered her to "get me somebody hot." When the boss returned
to the store some time later and found the unattractive saleswoman had not yet been replaced, he pointed to a young, attractive,
blond woman and told the plaintiff: "God damn it, get me one that looks like that." The plaintiff never carried out the order.
After receiving a series of negative performance reviews, she went on stress leave and ultimately sued, alleging she had been
retaliated against in violation of the California Fair Employment and Housing Act.
The court considered whether the plaintiff reasonably believed her boss's order to fire an unattractive female reps was unlawful
sex discrimination. It found she did, because she claimed she had supervised male and female reps over the years and had never
been ordered to fire a male rep for being unattractive. The court held that enforcement of an "unequal standard of attractiveness"
might be unlawful. It declined to decide the issue of whether a "gender-neutral requirement that a cosmetic sales associate
be physically or sexually attractive" would violate the law, but just by raising the issue, the court may have opened the
door to more lawsuits.
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