Thursday, December 18, 2008

“Ugly” as a protected class? Let’s get real.

Let’s review the currently protected classes. Under the current state of the law, it is illegal to discharge, to refuse to hire, or otherwise to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of: race, color, sex, religion, national origin, ancestry, age, disability, genetic information, military status, and veteran status. I am fairly confident that 2009 will add sexual orientation, and possibly gender identity, to this list.

According to Workplace Prof Blog, some researchers are beginning to suggest that we also add “ugly” to this list:

Researchers, including lawyers and economists, have begun examining ugliness, suggesting that the subject has been marginalized in history and that discrimination against the unattractive is a silent, widespread injustice…. "Beauty and the Labor Market," a study published in the American Economic Review in 1994, estimated that unattractive men and women earn five to ten percent less than those considered attractive or beautiful, and that less attractive women marry men with less money. Another study conducted by Tanya Rosenblat, an associate professor of economics, said "people who are physically attractive might develop better communication skills because the tendency is that from an early age they get more attention from all their caregivers, including their own mothers onward. The conclusion: discrimination based on looks occurs across occupations….

Steadily playing off of insecurities and implications, Dr. Synnott states: "Beautiful people are considered to be more intelligent, sexier, and more trustworthy.  And this implies that ugly people are assumed to be less trustworthy and less intelligent."

He notes that while few current laws prohibit employment discrimination based on lack of attractiveness, at least two California cities (San Francisco and Santa Cruz) have such a law on their books.

Let’s get real for a second – nothing is more subjective than beauty. Voltaire said, “Ask a toad what is beauty....; he will answer that it is a female with two great round eyes coming out of her little head, a large flat head, a yellow belly and a brown back.’” If we engaged this folly and legislated ugliness as a protected class, whose eyes would be the judge and jury?

Folly aside, this notion nevertheless serves a good reminder that we, as employers, should be making employment decisions based on ability and merit, not innate characteristics over which a person has no control, whether it’s a protected class such as race or an unprotected class such as attractiveness. Consistent merit based decisions not only serve as the best defense against lawsuits, but also save us from the notion that we need more protected classes.