Is Justice Blind? The Beauty Bias at Work

We all know you “can’t judge a book by its cover,” but it seems human nature makes it very difficult to avoid doing so. Endless studies by various sectors have shown that attractive people often have an advantage in the workplace. But now at least one knowledgeable writer is suggesting “there ought to be a law.” Stanford law professor Deborah Rhode, in her new book, The Beauty Bias: The Injustice of Appearance in Law and Life, argues that we should expand discrimination laws, since “discrimination on appearance reinforces stereotypes and undermines basic equal-opportunity principles.”

Should there be stricter anti-discrimination laws to reflect this new awareness and sensitivity? As a firm with an active practice in litigation and employment law, we thought it would be interesting to present both sides of this issue, as we’ve done below.

PRO

A recent Newsweek poll found that in all facets of the workplace, from hiring to daily activities to promotions, looks matter, sometimes even more than education. And, not surprisingly, it’s worse for women.

Take, for example, the case of Debrahlee Lorenzana, who was recently fired from Citibank. Ms. Lorenzana was allegedly dismissed because she was “too good looking.” She has filed a sex discrimination suit which is currently in private arbitration. Since this is a pending matter, we need to await the outcome and keep an open mind as to the merits of either her case or her employer’s. However, the fact there is such a case demonstrates that the issue is starting to surface.

Anti-discrimination laws abound at federal, state and municipal levels. Generally, such laws bar discrimination on the basis of race, sex, religion, national origin and ethnicity. Some jurisdictions have added sexual orientation. According to the Washington Post, only the state of Michigan and six locales have laws that protect against appearance discrimination. Professor Rhode cites research that proves, time and again, that unattractive people are less likely to be hired and promoted, and they earn lower salaries, even in fields in which looks have no obvious relationship to professional duties.

Professor Rhode contends that “stricter anti-discrimination laws could play a modest role in advancing healthier and more inclusive ideals of attractiveness.” Until these laws, are passed, however, the number of cosmetic surgeries performed may continue to rise, along with heel heights (perhaps this would explain the “heel walking workshops” and “Stiletto Strength” classes offered in gyms).

CON
Although Professor Rhodes’ survey probably does reflect reality, experience has shown that not all problems are amenable to a legal resolution.

First, how would you define a protected group? What if a “good-looking” person seeks to wrongly take advantage of the new, expanded laws? Are juries going to conduct beauty contests? Or, for that matter, reverse beauty contests?

Looks or appearance often give sub-conscious and not-so-subconscious cues as to legitimate, job-related characteristics. In some occupations, appearance matters. How will we allow for such judgments?

Will we be compelled to distinguish between “looks” and “appearance.” The latter implies factors like grooming and cleanliness, generally under the individual’s control while the former implies natural, uncontrollable characteristics. I suspect that every day we make judgments based on both and only rarely can we distinguish the two.

The survey and the whole subject is better suited for discussion in an educational, not a legal context. For individuals, self-help education can help them make the best use of what one has. For managers, these discussions can help them learn how to make personnel decisions more effectively.


 

When Test Results Lead to Job Loss

After doctors told a Connecticut woman that genetic testing revealed that she had an "80 percent" chance of getting breast cancer, she underwent a voluntary double mastectomy. After all, according to the New York Times, both of her sisters had already contracted the disease, and test results showed her to be a carrier of the BRCA2 breast cancer gene. When she returned to work, her company started giving her fewer responsibilities, then demoted her and ultimately fired her. Previously, she had received glowing reviews.

The 39-year-old mother of two recently filed complaints claiming that her employer violated the Genetic Information Nondiscrimination Act (GINA) as well as the Americans with Disabilities Act.

GINA prohibits companies and health insurers from considering someone’s genetic background in firing, hiring or promotions.

The Times article states that a representative of the Equal Opportunity Employment Commission said most of the complaints filed since the genetic law took effect six months ago seemed to involve cases in which employers had improperly acquired or disclosed genetic information. But Ms. Fink’s case alleges a more serious offense: her job was terminated because of her genetic risk factors.

A spokesperson for the employer is quoted by the Times as follows: “We are confident that when the facts are revealed, the company’s actions will be seen in a different light and will be seen as being warranted.”

Since we are commenting on a sketchy news report of the bare beginning of what promises to be a complex case, it is important that we refrain from hasty conclusions and await further developments.

Nonetheless, this EEOC complaint, described by an advocacy group as “the first to become public,” raises awareness about GINA and a whole set of new issues for employers relating to the use and misuse of genetic information. We will be keeping a close watch on developments in this emerging area of the law.

Congress Examines Age Bias (court cases, that is)

The Supreme Court has not been historically sympathetic to age discrimination cases. A recent New York Times editorial post stated that Congress is considering overturning a court ruling about age discrimination (Gross v. FBI Financial Services, Inc.) The ruling said that older workers must show that age was the decisive factor in their firing — not merely a contributing factor.

In 1967 Congress passed the Age Discrimination in Employment Act (ADEA), but the courts have made age discrimination suits very difficult. According to the Times piece, in 1993, in one of its most damaging rulings, the Court decided that if employers fire workers whose pension costs or salaries are high, they are not discriminating — even if the overwhelming number of people fired are older workers.

In our practice, we often see age discrimination that is subtle, with other factors involved. In those cases, we help negotiate a severance package and advise the client to move on.

What’s surprising is that there are still instances where it’s blatant and systemic (as pointed out by the Times article). Clients with the emotional -- and financial --resources may then choose to take a stand. But the burden of proof is on the plaintiff. The Supreme Court’s ruling in Gross v. FBI Financial Services (the case that Congress is thinking about reversing) said when there are mixed motives, the plaintiff has to prove age was the “but for” reason. This doesn’t work in terms of fairness and is inconsistent with the way other forms of discrimination are treated.

Interestingly, one blog reporting on this case rightly points out that the Supreme Court opinion states that Congress neglected to provide for a “mixed motive” analysis in age discrimination cases. On one level, as citizens, we might find it annoying that Congress and the Supreme Court are engaged in finger-pointing on an important issue. On another level, it shows that if Congress does act to reverse the rule in this case, it is not necessarily repudiating the Supreme Court but accepting the message that the law requires correction.

 

Employment Discrimination Verdicts Up; Look to Settle Anyway

AbaJournal.com reported recently that the median employment discrimination verdict rose 70 percent in 2007 to $252,000 from $147,000 in 2006. The post also reports that employers won only 38 percent of the cases that went to the jury.   

The post was by Jill Schachner Chanen was based on a report by Jury Verdict Research (“Employing the Law.”)

Although these numbers are interesting and somewhat useful, neither employers nor employees should depend too much on them. Many jury verdicts are reduced at some point after trial - - either by settlement to avoid a costly, time-consuming appeal or by the Court for various legal reasons. And, the amount of the verdict gives no indication of what the client actually recovered after costs.

Sometimes clients, hurt and embittered by the controversy, are confused when they are counseled to settle a case. Having hired attorneys to litigate, they wonder why don’t we want to litigate to the end? Lawyers are probably well-aware of the issues but for our non-lawyer readers: there are a number good reasons but one very good one is to exert a degree of control and achieve a degree of certainty as to what will be recovered by the client (when plaintiff) or what the litigation will cost (when defendant).

Some cases will inevitably have to go to trial but for most, despite the apparent uptick in the size of verdicts, it’s still far better to look to settle the case.

Avoiding Litigation and Making it Through a Deteriorating Economy

A short post in the New Jersey Employment Law Blog succinctly makes the point that while a deteriorating economy means belt-tightening, layoffs and severance agreements, obtaining advice before taking action is the one way to avoid making a difficult situation even worse.

I’d like to elaborate on that point and comment on a related but different aspect of the economy. There is no doubt that survival is the overriding business objective when the economy deteriorates. The real question though is whether the actions being taken to “survive” might actually accelerate the demise of the business. 

 

The business will not only survive but may actually come out stronger if (1) costly and demoralizing litigation and controversies are avoided while (2) building habits that establish a more professional, effective style of management towards workers and the business in general. 

 

On a different aspect of the deteriorating economy: there has not been sufficient time for all the government-generated liquidity and rescue funds to make any kind of impact. Without being over-optimistic, there is a good chance better times may be coming sooner than widely expected. Our businesses and professional practices need to exercise patience, professionalism and perseverance to position themselves for better times ahead.