The Washington Post has a column today about the “last bastion” of discrimination — namely, discrimination against people who are overweight or unattractive. The author, a Stanford law professor, argues that discrimination based on “irrelevant physical characteristics reinforces invidious stereotypes and undermines equal opportunity principles based on merit and performance.” She advocates for a law that bans discrimination based on appearance, contending that such a law could “reflect our principles of equal opportunity” and “play a modest role in advancing healthier and more inclusive ideals of attractiveness.”
According to the article, Michigan and some local jurisdictions have laws banning discrimination on the basis of appearance, and no flood of “loony litigation” has occurred. Indeed, she argues that people would be unlikely to invoke the law because to do so would be to confess to unattractiveness. I’m not so sure about that conclusion. In my experience, people who have been fired are perfectly happy to cite every possible argument that it was discrimination, and not their poor performance, that caused their dismissal. I can certainly imagine lawsuits where multiple paragraphs of the Complaint are devoted to describing comments about appearance that the former employee received over the years.
It seems to me, though, that simply countering the “floodgates” argument also ignores another important point. Many of the qualities that employers value most highly — like reliability, commitment, and integrity, among others — are intangible qualities that can’t be measured on an application form. Physical appearance, however, can provide clues that employers may use to make judgments about whether the person would be a suitable employee, and I think employers should be permitted to factor it into the hiring equation. If the person that you are interviewing is a slob, would you want to hire them for a job that required great precision and attention to detail?