The court also left open the possibility that employers might be able to argue that physical attractiveness is a "bona fide occupational qualification" (BFOQ) for certain types of jobs. This is a troubling comment, however, because the burden of establishing a BFOQ is on employers. Under such a standard, a drug company would have to show that a sales rep would be unable to perform the job of selling drugs unless he or she was physically attractive. It is not enough that customers (e.g., physicians) might have a strong preference for attractive salespersons. That customer preference is almost never a valid BFOQ was established many years ago when the courts struck down the airlines' practice of exclusively employing young attractive women as flight attendants.

It is important to keep in mind that the plaintiff in the Yanowitz case was the manager who was forced to quit for refusing to fire the unattractive saleswoman, and not the saleswoman herself. A different legal standard applies in a retaliation case versus a discrimination case; in the former, a plaintiff need only show a good faith, reasonable belief that conduct was discriminatory, not that it actually was discrimination. Although the California court thus stopped short of holding that an employer's preference for attractive reps is illegal, it may set the stage for future cases in which courts will be urged to adopt such a holding.

Who is Ugly Enough to Sue?

Will a certain level of unattractiveness be necessary to file a lawsuit? How will it be established? Will the government attempt to establish a national standard of attractiveness? Or will this be left to judges and juries to decide on a case-by-case basis? Will beauty contest judges find lucrative careers as expert witnesses? These questions, though a bit fanciful, illustrate the kinds of problems likely to result if this trend in the law continues.

How Can Pharma Prepare?

It is too soon to tell if pharma companies will become targets of class action lawsuits filed on behalf of job applicants who purportedly were not hired because of their looks. But some steps can be taken now to help avoid problems later.

First, if standards of attractiveness are to be applied in the hiring process, they should be applied to men and women. This will prevent plaintiffs from invoking sex discrimination laws by pointing to unequal standards of attractiveness.

Second, when documenting sales hires, management should refer to other traits and qualities important to succeeding in pharma sales, such as successful sales experience, demonstrated people skills, or participation in activities like sports or cheerleading that demonstrate competitiveness and enthusiasm. References solely to an applicant's appearance should be avoided.

Third, pharma should have strict policies in place against harassment of employees, including sales reps. Many jurisdictions hold employers liable when customers or vendors harass employees. Such a policy may also help counter charges that sales reps are implicitly encouraged to use their sexuality as a sales tool. Since most reps work in the field, companies should establish telephone "hotline" numbers so reps can report harassment by physicians.

Companies should take decisive action against physicians or others who harass sales reps. Salespersons should also be strictly admonished against dating or engaging in sexual relations with the physicians on which they call.

Finally, industry must guard against efforts by state legislatures to outlaw physical-appearance discrimination. While federal legislation is unlikely, states may be tempted to experiment with this legislation. To that end, companies should educate legislators about the problems inherent in this legislation, and the likely impact on the courts' workload if employees can sue when they feel disadvantaged against because of their looks.

James McDonald, Jr. is managing partner of the Irvine, CA office of Fisher & Phillips. He can be reached at jmcdonald@laborlawyers.com