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The Yanowitz Argument continues...
Typically, this blog contains lots of links. If you'll excuse the lack of links, I'm going to include the text of a debate between Martha Davis of Northeastern University School of Law regarding MIPTC's original post on the California Supreme Court's recent decision in the Yanowitz v. L'Oreal case. The debate was originally schedule to appear on Legal Affairs' website, and now appears here, thanks to their kind permission and Professor Davis.
Here's Professor Davis' counter to MIPTC's post:
"First, here are a few additional facts in the l’Oreal case. According to the court, the employee whom the supervisor identified as unattractive was a dark-skinned woman. And the supervisor didn’t simply say that she should be fired because she was ugly: he said she wasn’t “hot” enough and suggested that a blonde be hired in her place. Finally, Yanowitz, the manager who refused to fire the employee, alleged that the supervisor’s order constituted sex discrimination, i.e., there was no similar “attractiveness” criteria imposed on men employed by l’Oreal. In short, this case arose from classic facts involving sex and race discrimination. The court did not in any way create a new class of protected employees.
Now, turning to the question of whether a legislature should add “ugly” to the list of protected classes, my answer has to be no. Perhaps with enough data that ugliness discrimination is comparable to race and sex discrimination, I could be convinced otherwise. Along these lines, some jurisdictions have added obesity to the list of protected characteristics based on data showing that overweight persons suffer from severe discrimination. But there’s also evidence that tall people are more apt to find favor with employers. At the end of the day, while we want employers to be fair, some idiosyncratic preferences are tolerable – and in the end, I suspect, they all even out. Each of us has our own cross to bear, whether we’re bald or frumpy or freckled.
Nevertheless, as the l’Oreal case illustrates, existing laws already bar appearance discrimination that reflects prohibited stereotypes.
Many of the reported cases in this area involve airlines. You probably remember that airlines once imposed strict appearance requirements on their flight attendants (in fact, flight attendants were all stewardesses!). Some airlines defended this practice by asserting that their customers would find attractive, female attendants more soothing. Courts rejected these justifications, finding that attractiveness had nothing to do with airlines’ core safety and transportation functions. Instead, said the courts, this was simply a variety of sex stereotyping. And as we know now, anyone from the matronly to the svelte, can do a good job.
There may be some narrow category of jobs where appearance criteria do not reflect discriminatory biases. Acting comes to mind. Or – and there is plenty of debate here – Playboy bunnies, strippers and Hooters girls. But these are narrow areas where a business is specifically selling the opportunity to interact with someone who looks a particular way. That’s not the core function of the typical enterprise.
In short, while the subjective nature of ugliness would make it difficult to administer as a protected class, a wide range of appearance discrimination is already barred because it arises from stereotypes about sex, race, and so on. In fact, I think most appearance discrimination – exactly like the supervisor’s preference for “hot blondes” over dark-skinned saleswomen in the l’Oreal case – arises from such stereotypes. This discrimination should be illegal and happily, it already is."
Look for MIPTC's rebuttal tomorrow.