Sexy sex discrimination: why appearance-based discrimination is sex discrimination.

• Author: Friedricks, Sarah E.

1. INTRODUCTION II. BACKGROUND A. Employment Law Background B. Legal Background C. Empirical Background III. ANALYSIS A. Why Discrimination in the Workplace Matters 1. Harms to the Employer: Decreased Employee Efficiency 2. Harms to the Employee: Gender Stereotypes Reinforced B. How Courts Define Appearance-Based Discrimination and Why They Reject It as Sex Discrimination IV. RECOMMENDATION A. Title VII Should Prohibit Appearance-Based Discrimination as a Type of Sex Discrimination B. Establishing Appearance-Based Discrimination as a Separate Class of Discrimination C. Courts Can Play a Crucial Role in Establishing Appearance-Based Discrimination as Sex Discrimination V. CONCLUSION I. INTRODUCTION

   In 2010, Iowa dental assistant Melissa Nelson and her employment became front-page news both in Iowa and across the nation. (1) Her employer, James Knight, fired Nelson for being so attractive that she was irresistible to him, and therefore, she threatened his marriage. (2) Nelson fought the termination, suing him for wrongful discharge, and her case eventually made its way to the Iowa Supreme Court. (3) In 2013, that court held in Knight's favor, finding Nelson's claim insufficient to establish sex discrimination. (4) Nelson was not the first employee terminated because of her appearance, nor was she the first fired for being too attractive. (5) Nelson's case, however, generated significant media attention and provoked public outrage; the decision that an employer could fire an otherwise qualified and well-performing employee because of her attractive appearance shocked many. (6)

   This Note argues that claims such as Nelson's are sex discrimination claims that courts should analyze under Title VII of the Civil Rights Act of 1964 (Title VII). (7) Part II establishes the context for appearance discrimination claims by first discussing the status of American employment discrimination law and then exploring new psychological research that suggests attractiveness has different consequences for men than women. Part III then examines employment discrimination in more detail, analyzing why discrimination is detrimental to both employers and employees, and evaluating courts' responses to specific appearance-based discrimination claims. Part IV ultimately recommends that courts redefine sex discrimination to include appearance-based discrimination and protect against such discrimination under Title VII or, alternatively, establish appearance-discrimination as its own distinct category of prohibited employment discrimination.

2. BACKGROUND

   People often consider an attractive appearance a positive attribute, but this Note argues it may have potentially harmful consequences in the employment context, especially for women. This Part first examines the current environment of American employment law, focusing on the at-will employment doctrine, which favors employers and is followed throughout the United States. (8) Congress, however, has long curbed the at-will doctrine with anti-discrimination laws, such as Title VII, which prevents employers, even in the at-will employment context, from terminating employment for discriminatory reasons based on race, sex, or other types of prejudice. (9) This Part next addresses appearance-based discrimination, explaining that the United States has yet to recognize it as a prohibited type of discrimination, which may be due to misunderstandings and outdated research about how our perceptions of beauty affect us and our interactions with others. (10) Finally, this Part discusses new research that suggests a gender disparity in the consequences of being attractive, (11) supporting the proposition that appearance-based discrimination is simply another form of sex discrimination.

   1. Employment Law Background

      One of the fundamental struggles in employment law is balancing the need to respect employers' autonomy (12) as they operate their private businesses with the need to protect employees from unjust discrimination. (13) While it may seem intuitive that an employee can, and should, only be fired for violating policy or failing to perform adequately, in the United States, most employers have a legally protected right to terminate an employee for any reason--"a good reason, a bad reason or no reason at all ... as long as that decision is not unlawful as a result of a specific law, such as ... [an] antidiscrimination statute[]...." (14) This right is known as the at-will employment doctrine and has been the common law and default rule for the last 130 years in the United States. (15)

      Every state but Montana recognizes this preference for the employer. (16) As long as an employer does not terminate an employee for reasons prohibited by "federal, state, or local antidiscrimination statutes," the at-will employment relationship gives an employer autonomy, allowing him almost complete discretion in his choices regarding whom he employs. (17) The United States remains one of the only industrialized countries to rely exclusively on "general employment at-will"; other industrial powers require employers to show just cause in employee dismissals. (18) Collective bargaining by unions may offer a degree of protection to employees, in some cases only allowing an employer to terminate an employee for "good reason or just cause." (19) However, because this safeguard is not prevalent--93.4% of the private workforce is not currently unionized (20)--employers are primarily limited only by antidiscrimination statutes.

      Title VII is the prevailing federal statute creating an exception to the at-will doctrine. This section of the statute prohibits employers from "fail[ing] or refus[ing] to hire or to discharge any individual ... because of such individual's race, color, religion, sex, or national origin." (21) While this law protects against some serious forms of discrimination, it is not all-inclusive, and some see it as missing key types of discrimination. (22) For example, the statute does not prohibit an employer from terminating an employee on the basis of sexual identity or orientation. (23) Due to the law's limited scope, many plaintiffs assert a cause of action even when the action is not one specifically enumerated by the statute. (24)

      While employees may believe employment discrimination laws do not accomplish enough, employers argue these laws "imping[e] too much on the workplace and employer decision making...." (25) Title VII, however, does give employers some flexibility. The statute permits employers to hire an individual based on his religion, sex, or national origin, if that characteristic is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business...." (26) This is known as the bona fide occupational qualification (BFOQ) exception. (27) For example, an employer may discriminate based on sex when hiring an actor or actress to ensure "the authenticity of the production." (28) The Supreme Court analyzes the BFOQ defense using two tests: (29) employers can use a BFOQ defense when "the essence" of the position demands an employee be of a certain sex, religion, or national origin (30) or when "all or substantially all" of the people discriminated against would be unable to perform the job. (31) Defining when the BFOQ exception is met--when a protected characteristic is necessary for a job--is a complex and evolving task that accounts for a highly controversial area of employment discrimination law. (32)

   2. Legal Background

      As a result of the lack of bright line rules in Title VII, employment discrimination litigation has increased dramatically. (33) Since 1970, these cases have shifted from plaintiffs initially claiming discrimination in hiring, to plaintiffs largely alleging wrongful discharge for discriminatory dismissal. (34) While Title VII does not recognize appearance-based discrimination, litigants are beginning to bring this issue to the courts. (35) These plaintiffs originally claimed employers wrongfully discharged or wrongfully refused to hire them because of their unattractive physical appearance. (36) Recently, however, plaintiffs have argued "reverse appearance-based discrimination," claiming employers fired them for being too attractive. (37) These cases include the stories of Desiree Goodwin, (38) Debrahlee Lorenzana, (39) and Melissa Nelson. (40) Goodwin, a librarian at Harvard University, filed suit after allegedly being "passed over for numerous promotions because she was 'just a pretty girl,' who wore 'sexy outfits'" which caused people not to take her seriously. (41) She asserted a claim for sex discrimination, but the jury disagreed with her argument. (42) Five years later, Lorenzana claimed Citibank fired her for being too "hot" after repeatedly telling her to "wear looser-fitting cloth[es]" because her figure made the clothes appear "too provocative and distracted her male colleagues," even when her attire met the office's dress code requirements. (43) This case was ultimately settled out of court. (44) Most recently, the Iowa Supreme Court rejected Melissa Nelson's claim of sex discrimination after her employer, dentist James Knight, fired her because he felt her attractive appearance was a threat to his marriage, partly due to the close personal relationship the two shared. (45)

      As exemplified in these recent decisions, courts have largely rejected the idea of prohibiting employment discrimination based on "lookism" or appearance. (46) Currently, the only way appearance-based discrimination claims make it to court is through the "fitting" phenomenon--an appearance-based discrimination claim that "'fits' under another expressly protected characteristic." (47) Historically, judicial acceptance of new discrimination claims has begun with plaintiffs "fitting" their claims into existing discrimination causes of action, leading to later legislation protecting these newer types of discrimination. (48) Courts' history of...