Deborah L. Rhode addresses the persistence of appearance-based job discrimination:
In one national poll, 16 percent of workers reported that they had been subject to such bias, a percentage that is slightly greater than those reporting gender or racial prejudice (12 percent). Most women do not believe that employers should have the right to discriminate based on looks. The reasons are straightforward. Such discrimination compromises principles of individual dignity and equal opportunity to the same extent as other forms of bias that are now illegal. Yet only a small number of jurisdictions explicitly ban discrimination based on appearance. What accounts for the difference in treatment?
To many observers, appearance discrimination seems a rational response to customer preferences. Employees’ attractiveness can often be an effective selling point, and part of a strategy to “brand” the seller through a certain look. According to a spokesperson for the Borgata Hotel Casino & Spa, its weight limits and periodic “weigh-in” requirements for “Borgata Babes” cocktail waitresses responded to market demands: “Our customers like being served by an attractive cocktail server.”
Rhode argues for new employment laws:
Part of the problem is that attractiveness and grooming standards fall along a continuum.
How would employers or courts determine when an individual is unattractive enough to warrant protection? Critics worry that appearance discrimination laws will result in “litigiousness run wild,” impose “untold costs” on businesses, and erode support for other legislation prohibiting “truly invidious discrimination.” As one trial judge noted, courts “have too much to do” to become embroiled in petty grooming code disputes about where women can and can’t wear pants. …
[It is not] likely that prohibitions on appearance discrimination would unleash a barrage of loony litigation. The few jurisdictions that have such laws report relatively few complaints. Cities and counties average between zero and nine a year, and Michigan averages about 30, only one of which ends up in court. Given the costs and difficulties of proving bias, and the qualifications built into current legal prohibitions, their enforcement has proven far less burdensome than opponents have feared.
In 2002, Jennifer Portnick taught exercise classes and worked out almost every day. But the fitness company Jazzercise turned her down for a franchise because she weighed 240 pounds (height 5-foot-8). Jazzercise told Portnick that its instructors “must have a high muscle-to-fat ratio and look leaner than the public.” Portnick complained to the San Francisco Human Rights Commission, under a law the city had passed in 2000 to prevent discrimination on the basis of appearance. She won. And Jazzercise changed its tune nationally, saying it would no longer demand thinness from its instructors.