Why lawsuits based on looks discrimination—even good ones—are a bad idea.

The law, lawyers, and the court.
June 11 2010 5:33 PM

Too Sexy for My Bosses

Why lawsuits based on looks discrimination—even good ones—are a bad idea.

Debrahlee Lorenzana.
Debrahlee Lorenzana 

Debrahlee Lorenzana made news this week with the unusual civil rights claim that her employer, Citigroup, has discriminated against her because she is a hottie. "At five-foot-six and 125 pounds … she is J-Lo curves meet Jessica Simpson rack meets Audrey Hepburn elegance—a head turning beauty,"drools the Village Voice. According to her lawsuit, Lorenzana is so smoking hot that her co-workers couldn't concentrate on their jobs. Her bosses eventually demanded that she revamp—or, rather, de-vamp—her wardrobe: They banned tight pants, pencil skirts, high heels, and clingy turtlenecks. When Lorenzana pointed out that other women in her office wore more revealing clothes than she did, Lorenzana says her bosses replied, in essence: "Yeah, but they aren't as hot as you are." And when Lorenzana came to work, still looking just as jaw-droppingly sexy as ever, Citibank fired her. Believe it or not, Lorenzana is not the first person to claim in court that she's too sexy for her job. In 2005 librarian Desiree Goodwin sued Harvard University for discrimination, complaining that she was denied promotions because she was "seen merely as a pretty girl who wore sexy outfits, low cut blouses, and tight pants."

Don't hate me because I'm beautiful isn't the best line to inspire public sympathy, much less to begin your complaint for employment discrimination. But Lorenzana might have stronger arguments than her crippling gorgeousness: For instance, she claims her supervisors refused to enroll her in the training sessions she needed to do her job; handed off clients she had cultivated to men, then dinged her for not bringing in enough business; and fabricated incidents of tardiness as an excuse to put her on probation. This sounds like straightforward sex discrimination and harassment. In other words, if these more straightforward claims are true, the whole sexy wardrobe issues are a pointless—if headline-grabbing—distraction.

But is it illegal to fire someone just for being too sexy? Should it be? Federal civil rights law prohibits sex discrimination, and some courts have interpreted that law to forbid dress codes that are "demeaning" to women or impose "unequal burdens" in terms of time and money for men and women. Most cases challenging employer dress codes as sex discrimination have involved requirements that women wear makeup or revealing outfits—these women lost their jobs not for being too sexy but, arguably, for not being sexy enough. But for the most part, workplace dress codes are legal, even when they impose different requirements for men and women. For instance, in Jespersen v. Harrah's Operating Co., a bartender at a Reno, Nev., casino sued when her employer adopted a new dress code that required her to style her hair and wear makeup.  Jespersen complained that she found wearing makeup "degrading." But the 9th Circuit Court of Appeals found that Harrah's grooming code was equally burdensome for men and affirmed the dismissal of her lawsuit.

A handful of jurisdictions prohibit "appearance discrimination." Almost all of those laws are limited to things like unequal treatment for height, weight, and immutable physical characteristics. Yet high-profile cases like Jespersen have led some legal commentators—such as my Stanford colleague Deborah Rhode—to insist that dress codes that clash with the personal values or self-image of employees violate their civil rights unless that dress code is objectively job-related. And if that's true, shouldn't we be just as concerned with protecting the rights of the hotties as the notties? Debralee Lorenzana's complaint may look like the opposite of Darlene Jespersen's, but in a sense they're the same. In reaction to Citibank's demand that she wear looser-fitting clothes, Lorenzana complained: "Where I'm from … women dress up—like put on makeup and do their nails—to go the supermarket." Jespersen said hair and makeup had nothing to do with her job and complained that she found getting dolled up demeaning. Both women objected that the dress codes clashed with their own personal self-image. If Jespersen should have a right not to wear makeup because she finds it degrading, shouldn't Lorenzana have a right not to wear baggy clothes if she finds them bland and stifling?

The strongest arguments against appearance discrimination focus on its effect on women. Existing laws against sex discrimination can and should prohibit policies that are sexually demeaning (hence the entire Hooter's business model might violate federal law, but that's another article) or impose discriminatory burdens. But beyond that, it's hard to know where civil rights based on appearance would end. Hundreds of American businesses have strict dress codes, especially for employees who interact with the public. For instance, according to the Los Angeles Times, the Ritz Carlton hotel chain forbids "beards and goatees, 'mutton chop' sideburns, dreadlocks, big hair … earrings larger than a quarter, more than two rings on each hand, skirt lengths higher than 2 inches above the top of the knee and long fingernails." Lots of people really like their goatees, dreads, and door-knocker earrings, but must every workplace permit them? Thousands of employers insist that employees wear understated suits and ties, skirts and nylons, polished shoes, conservative haircuts. None of these norms of dress and grooming are directly related to objective job performance—but should they be outlawed?  Many employers try to cultivate a workplace culture and image—whether staid and professional like Citibank or glitzy and glamorous like Harrah's—by establishing standards of grooming and dress.

In the end, dress and grooming codes are just another job requirement—no different from rules about how employees should greet and interact with customers—and they should be evaluated as such. And explicit requirements may be better for many employees than the alternatives. In many workplaces no one tells you what to wear, but inappropriate attire is taken as a symptom of more serious flaws: poor judgment, vulgar taste, or bad upbringing. A dress code or a boss who offers explicit wardrobe guidance can be an egalitarian counterweight to the subtle class biases that inappropriate clothing choices would otherwise trigger.

It's a sign of how informal we've become as a society that people think the imposition of an office dress code is a civil rights violation. Perhaps a generation used to being evaluated on the ideas in their essays but not on grammar or exposition can be forgiven for thinking that expectations about style and appearance are not only superficial but outdated. But surely the triumph of Apple over Microsoft has put to rest the idea that the CPU is always more important than the interface. It's tempting to think of civil rights against "appearance discrimination" as a victory of liberty and equality over oppressive conformism. Opposing judgments based on appearance suggests a refined sensibility, attuned to deeper and higher concerns, and it also fits nicely with the increasing informality of modern culture—the era of "business casual" and the barefoot wedding.

But proposals to ban appearance discrimination reflect a patrician sensibility of their own: a conviction that supposedly objective merits, raw intelligence, and technical mastery—the values of the professor, the bohemian intellectual and the high-tech startup—should always trump "superficial" social virtues such as decorum and good taste. There's a troubling immodesty about the perfectionist quest to blind us all to appearances—a quest that would dismiss as bias so much of what many people consider a sign of professionalism, respect, and good form.

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