Should Beauty Bias Be Illegal?

A patient undergoes cosmetic surgery Antonio Scorza / AFP-Getty Images

If you are anything like me, you left the theater after Sex and the City 2 and thought, there ought to be a law against a looks-based culture in which the only way for 40-year-old actresses to be compensated like 40-year-old actors is to have them look and dress like the teenage daughters of 40-year-old actors. You can't even look at Sarah Jessica Parker without longing to feed her croissants.

Meet Deborah Rhode, a Stanford law professor who proposes a legal regime in which discrimination on the basis of looks is as serious as discrimination based on gender or race. In a provocative new book, The Beauty Bias, Rhode lays out the case for an America in which appearance discrimination is no longer allowed. That means Hooters can't fire its servers for being too heavy, as allegedly happened last month to a waitress in Michigan who says she received nothing but excellent reviews but weighed 132 pounds. And the top management at Abercrombie & Fitch couldn't hold weekly meetings, as they allegedly did, at which photos of its sales associates were reviewed and purged for any sign of breakouts, weight gain, or unacceptable quantities of ethnicity.

Rhode is at her most persuasive when arguing that in America, discrimination against unattractive women and short men is as pernicious and widespread as bias based on race, sex, age, ethnicity, religion, and disability. Rhode cites research to prove her point: 11 percent of surveyed couples say they would abort a fetus predisposed toward obesity. College students tell surveyors they'd rather have a spouse who is an embezzler, drug user, or a shoplifter than one who is obese. The less attractive you are in America, the more likely you are to receive a longer prison sentence, a lower damage award, a lower salary, and poorer performance reviews. You are less likely to be married and more likely to be poor.

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And all of this is compounded by a virtually unregulated beauty and diet industry and soaring rates of elective cosmetic surgery. Rhode reminds us how Hillary Clinton and Sonia Sotomayor were savaged by the media for their looks, and says it's no surprise that Sarah Palin paid her makeup artist more than any member of her staff in her run for the vice presidency.

Critics such as Andrew Sullivan claim that if we legally ban appearance discrimination, the next step will be legal protection of "the short, the skinny, the bald, the knobbly kneed, the flat-chested and the stupid." But Rhode points out that there are already laws against appearance discrimination on the books in Michigan and six other locales. This hasn't resulted in an explosion of frivolous suits, she notes. In each jurisdiction the new laws have generated between zero and nine cases annually. In Michigan about 30 looks-discrimination suits are filed per year, of which on average only one is litigated. The unworthy cases will be weeded out by the cost and burden of litigation, she contends. And the legal system will have taken a symbolic step toward greater tolerance that may have the effect of shifting social views, as did Brown v. Board of Education (with regard to race discrimination) and Lawrence v. Texas (with respect to gay rights).

Of course the problem with making appearance discrimination illegal is that Americans just really, really like hot girls. And so long as being a hot girl is deemed a bona fide occupational qualification, there will be cocktail waitresses fired for gaining three pounds. It's not just American men who like things this way. In the most troubling chapter in her book, Rhode explores the feminist movement's complicated relationship to eternal youth. The truth is that women feel good about competing in beauty pageants. They love six-inch heels. They feel beautiful after cosmetic surgery. You can't succeed in public life if you look old in America. Of the 16 women in the U.S. Senate between ages 46 and 74, not one has gray hair. Rhode cites one feminist icon after another who changed her mind about the evils of cosmetic surgery, hair color, and Botox the instant the sagging, graying, and wrinkling set in.

To put it another way, appearance bias is a massive societal problem with tangible economic costs that most of us—perhaps especially women—perpetuate each time we buy a diet pill or sneer at Elena Kagan for not dressing like Miley Cyrus. This doesn't mean we shouldn't work toward eradicating discrimination based on appearance. But it may mean recognizing—well in advance of Sex and the City 3 ("Samantha discovers the Depends thong…")—that the law won't stop us from discriminating against the overweight, the aging, and the imperfect, so long as it's the quality we all hate most in ourselves.