Critics such as Andrew Sullivan have claimed that if we create a legal regime in which we 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 counties across the United States, and they have not, in fact, resulted in an explosion of frivolous suits. 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. Moreover, Rhode contends, 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). You don't need a flood of new litigation to change the culture, after all. One looks-discrimination complaint filed in 2002 by an overweight-but-fit Jazzercize instructor in San Francisco led to a national change in the fitness chain's policy.
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" for some types of employment, there will be cocktail waitresses fired for gaining three pounds and salespeople terminated for acne. And as Rhode admits, 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 the quest for eternal youth. And truth is that women feel good about competing in beauty pageants. They love six-inch heels. They feel beautiful after cosmetic surgery. (A feminist professor from Yale famously defended her surgically enhanced breasts with the claim that "I bought them myself.")
Women cannot seem to escape the cycle that leads all of us to wish other women would stop shaving their legs or coloring their hair. It seems you just can't succeed in public life if you look old in America. Rhode writes that of the 16 women in the U.S. Senate, who are between the ages of 46 and 74, not a one has gray hair. She 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.
While appearance bias is certainly a massive societal problem with tangible economic costs, most of us—even women, and perhaps especially women—will perpetuate such bias 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, and Rhode is hopeful that small steps may have great impact. But it does mean recognizing—and 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 those are the qualities we all loathe most in ourselves.
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