The injustice of appearance.

• Author: Rhode, Deborah L.

INTRODUCTION I. THE IMPORTANCE OF APPEARANCE AND THE COSTS OF CONFORMITY A. Definitions of Attractiveness and Forms of Discrimination B. Interpersonal Relationships and Economic Opportunities C. Self-Esteem and Quality of Life D. Time and Money E. Health Risks II. THE INJUSTICE OF DISCRIMINATION A. The Rationale for Banning Discrimination Based on Appearance 1. Equal opportunity: bias, stereotypes, and stigma 2. Subordination: compounding inequalities based on class, race, ethnicity, gender, disability, and sexual orientation 3. Self-expression: personal liberty and cultural identity 4. The cumulative impact of bias based on appearance B. The Rationale for Discrimination and Resistance to Prohibitions 1. Public attitudes 2. Job performance, corporate image, and customer preferences 3. Pragmatic concerns 4. The parallel of sex harassment 5. The contributions of law III. LEGAL FRAMEWORKS A. The Regulation of Appearance B. The Limitations of Prevailing Legal Frameworks 1. Constitutional challenges 2. Statutory challenges based on sex, race, and religious discrimination 3. Discrimination based on disability C. Prohibitions on Appearance Discrimination 1. Local ordinances: Santa Cruz, Urbana, San Francisco, the District of Columbia, Howard County, and Madison 2. Michigan 3. Australia 4. Europe 5. The contributions and limitations of laws on appearance discrimination IV. DIRECTIONS FOR REFORM A. Defining the Objectives B. Legal Strategies C. Political Activism, Policy Initiatives, and Research Agendas CONCLUSION INTRODUCTION

"It hurts to be beautiful" is a cliche I grew up with. "It hurts not to be beautiful" is a truth I acquired on my own. But not until finishing the research that led to this Article did I begin to grasp the cumulative cost of our cultural preoccupation with appearance. Over a century ago, Charles Darwin concluded that when it came to beauty, "[n]o excuse is needed for treating the subject in some detail." (1) That is even truer today; our global investment in appearance totals over $200 billion a year. (2) Yet when it comes to discrimination based on appearance, an excuse for discussion does seem necessary, particularly for a legal scholar. Given all the serious problems confronting women--rape, domestic violence, poverty, child care, unequal pay, violations of international human rights--why focus on looks? Most people believe that bias based on beauty is inconsequential, inevitable, or unobjectionable. (3)

They are wrong. Conventional wisdom understates the advantages that attractiveness confers, the costs of its pursuit, and the injustices that result. Many individuals pay a substantial price in time, money, and physical health. Although discrimination based on appearance is by no means our most serious form of bias, its impact is often far more invidious than we suppose. That is not to discount the positive aspects of beauty, including the pleasure that comes from self-expression. Nor is it to underestimate the biological role of sex appeal or the health and fitness benefits that can result from actions prompted by aesthetic concerns. Rather, the goal is to expose the price we pay for undue emphasis on appearance and the strategies we need to address it.

What makes this issue so important is both our failure to address it and the unwillingness of so many legal scholars and policy makers to take that failure seriously. Of all the problems that the contemporary women's movement has targeted, those related to appearance have shown among the least improvement. In fact, by some measures, such as the rise in cosmetic surgery and eating disorders, our preoccupation with attractiveness is getting worse. Yet many commentators see discrimination based on appearance as inevitable and inappropriate for legal prohibition.

This Article, by contrast, argues that discrimination based on appearance is a significant form of injustice, and one that the law should remedy. Part I explores the importance of appearance and the costs of discrimination on that basis. Part II develops the rationale for prohibiting such discrimination. Part III reviews the limitations of prevailing civil rights laws concerning appearance and provides the first systematic research on the small number of state, local, and international laws that explicitly prohibit some forms of discrimination based on appearance. Part IV concludes with legal, policy, and cultural strategies to reduce the price of prejudice.

1. THE IMPORTANCE OF APPEARANCE AND THE COSTS OF CONFORMITY

   I'm tired of all this nonsense about beauty being only skin deep. That's deep enough. What do you want, an adorable pancreas?--Jean Kerr

   Beauty may be only skin deep, but that is deep enough to confer an unsettling array of advantages. Although most of us learn at early ages that physical attractiveness matters, few of us realize how much. Nor do we generally recognize the extent to which our biases conflict with meritocratic principles. In a recent national survey, only a third of employees believed that, in their workplaces, physically attractive individuals were more likely to be hired or promoted. (4) Yet a cottage industry of studies indicates that such bias is more pervasive, and that individuals underestimate the extent to which attractiveness skews their evaluations. (5) Appearance imposes penalties that far exceed what most of us assume or would consider defensible.

   1. Definitions of Attractiveness and Forms of Discrimination

      A threshold question is what exactly do we mean by "attractive." Is its influence something that researchers can adequately measure? Although conventional wisdom holds that beauty is in the eye of the beholder, in fact most beholders agree about the appeal of certain characteristics. Sociobiologists see an evolutionary basis for these preferred features. Facial symmetry, unblemished skin, and firm breasts have been widely viewed as evidence of health and fertility. (6) To be sure, some preferences, particularly those regarding grooming and body shape, have varied across time and culture. But the globalization of mass media and information technology has brought an increasing convergence in standards of attractiveness. (7)

      Researchers on appearance have achieved a substantial measure of reliability through a "truth in consensus" method. (8) In essence, subjects rate a photograph or an individual on a scale of attractiveness, and those ratings are then averaged to produce an overall assessment. Such methods yield a strikingly high degree of consensus even among individuals of different sex, race, age, socioeconomic status, and cultural backgrounds. (9)

      Research on weight discrimination also relies on widely shared measures, although some terminology is controversial. The Centers for Disease Control and Prevention (CDC) defines overweight and obesity based on a Body Mass Index (BMI), a ratio of height to weight; clinicians define obesity as 20% over ideal body weight. By CDC standards, about two-thirds of American adults are overweight or obese. (10) The National Association to Advance Fat Acceptance (NAAFA) prefers the term "fat," which its members believe carries less stigma and fewer contested connotations of abnormality. (11) However, in conventional usage, "fat" is generally taken as more offensive than "overweight." And for many researchers, "fat" appears less precise and less consistent with social science and legal terminology. This Article follows the preferences of these different constituencies in describing their work. "Obesity" and "overweight" are used to discuss social science findings and legal rulings, and "fat" is used to discuss the efforts of activists.

      A related issue is what we mean by "discrimination based on appearance." Such bias falls along a continuum. At one end is discrimination based on characteristics that are difficult or impossible to change, such as height and facial features. Although sex, race, and ethnicity affect appearance, they implicate identity in a more fundamental sense than other traits and are generally considered separately in legal and theoretical discussions of discrimination. At the other end of the continuum are purely voluntary characteristics, such as fashion and grooming. In between are mixed traits, such as obesity, which have both biological and behavioral foundations. Social science research on appearance generally does not distinguish among these forms of bias; what makes a given individual attractive often reflects both innate features and voluntary grooming choices. However, as subsequent discussion suggests, discrimination based on factors beyond personal control generally raises the most significant ethical concerns and may sometimes justify different legal and policy treatment than other forms of appearance-related bias. (12)

   2. Interpersonal Relationships and Economic Opportunities

      The significance of appearance begins early. Parents and teachers give less attention to less attractive infants and children, and they are less likely to be viewed as good, smart, cheerful, likeable, and academically gifted than their more attractive counterparts. (13) Children themselves quickly internalize these judgments. They ascribe better personality traits to good-looking individuals and prefer them as friends. (14) The teasing and ostracism that unattractive and overweight children experience can lead to significant mental health problems and less extracurricular involvement, which further compound such psychological difficulties. (15)

      The importance of appearance persists throughout adult life. The preference for attractiveness comes as no surprise, but the extent of the advantages is less obvious. A wide array of research documents a phenomenon that psychologists describe as "what is beautiful is good." Less attractive individuals are less likely to be viewed as smart, happy, interesting, likeable, successful, and well-adjusted. (16) They are less likely to marry and to marry...