Pay, Looks, and Discrimination

Pretty-Privilege: The Ugly Truth About Appearance Discrimination

by  Catarina Colón and Erik Eisenmann

at  Husch Blackwell LLP

In the complex tapestry of workplace dynamics, there exists an often unspoken advantage known as the beauty premium or “pretty privilege.” This phenomenon refers to the societal bias toward individuals who are perceived as conventionally attractive. Over twenty years of scholarly articles show an unconscious preference to interact with people we may find attractive, even in the employment context during the hiring process and throughout employment. While it may seem superficial, pretty privilege can significantly impact one’s career trajectory, opportunities, and overall experience in the professional world.

Pretty privilege manifests itself in various ways within the workplace. From hiring decisions to promotions, attractive individuals may find themselves receiving preferential treatment based solely on their appearance.[1] For example, conventionally attractive people are more likely, when other qualifications are equal, to be offered a job.[2] And, once hired, pretty people make up to 10-15% more money than their similarly qualified peers. The bottom line is that bias in favor of conventionally attractive individuals can lead to less optimal and unfair outcomes for employees.

Federal Laws

Some characteristics of appearance that may be related to one’s attractiveness are already protected by law, but not all. For example, Title VII of the Civil Rights Act of 1964 protects employees from discrimination due to their sex, race, color, national origin, and disability, many of which are tangentially related to an individual’s appearance. It does not, however, protect employees from discrimination based on height, weight, fitness level, tattoos, piercings, or other features related to subjective attraction.

Some cities and one state have taken steps towards adding protections for employees against discrimination based on appearance. Publicized efforts have substantially focused on characteristics that overlap with Title VII protected characteristics like race. For example, state and local CROWN Acts (Creating a Respectful and Open World for Natural Hair) protect Black employees from discrimination based on natural Black hairstyles.[3] Other laws, however, focus on height and weight protections, or even complete appearance protections that sometimes extend to tattoos or other body art. Those laws generally have exceptions if a particular characteristic interferes with a bona fide occupational requirement to do the job (for example, physical fitness is a job requirement for first responders like firefighters).

State-Specific Laws

Michigan is the only state with any kind of physical appearance protection. Statewide, Michigan citizens are protected from height and weight discrimination by the Elliot-Larsen Civil Rights Act. Michigan’s protections do not, however, extend to other appearance-related characteristics.

Local Laws and Ordinances

General Appearance Discrimination

At the local level, Santa Cruz, California protects “physical characteristics” from “birth, accident, or disease” other otherwise “beyond the control of the person,” to include height and weight. Notably, this definition would specifically exclude choices like dress, body art, and piercings since all would likely be considered “within personal control.”

In contrast, the Washington D.C. Human Rights Act defines “personal appearance” to include elements of appearance that are within a person’s control, including manner and style of dress or grooming. Howard County, Maryland has similar protections, but those protections do not apply if an employer requires and consistently enforces a uniform requirement, or cleanliness requirement, or if the employer can otherwise establish that an element of appearance is job-related.

Similarly, Madison, Wisconsin defines “physical appearance” to include dress, hairstyle, weight, and height. However, uniforms and other proscribed appearance standards consistently applied to employees only need to satisfy “reasonable business purposes”—including appealing to customer preferences. For example, in 2003 a Madison-based employee who violated her employer’s dress code by wearing an eyebrow piercing could be legally terminated despite her claim of physical appearance discrimination because the piercing did not fit the business’ brand.

Height and Weight Discrimination

Some local laws specifically cover height and weight without addressing other elements of appearance, like dress or grooming. San Francisco, California specifically prohibits discrimination based on height and weight. So too does Binghamton, New York, and, most recently, New York City.[4] The Binghamton Human Rights Law goes so far as to define height and weight to include body proportion and composition.

Tattoo and Body Piercing Discrimination

The next frontier of appearance discrimination may be related to tattoos and piercings. The New York City Council is currently considering a bill to extend protection to employees with tattoos (though the bill would still allow employers to require the tattoos to be covered during work hours). Tattoo discrimination has previously been at issue primarily due to conflict with religious beliefs—particularly if covering up a religious tattoo directly conflicts with the religious practices in question. Non-religious tattoos, however, have generally been free for an employer to police as it sees fit.

Today, tattoos are more popular and accepted than ever before, and instead are seen by greater proportions of the population as expressions of creativity, individuality, personal expression—and attractiveness. In fact, in a 2019 Ipsos study, the market research company reported that 40% of Americans between the ages of 18 and 34 have at least one tattoo, and 30% of all Americans do. Unsurprisingly, some employers have begun loosening up tattoo policies due to difficulties recruiting in the current labor market, as well as part of diversity and inclusion initiatives. Companies known for historically strict dress codes prohibiting visible tattoos, like Disney, UPS, Virgin Atlantic, and the U.S. Army changed their policies beginning in 2020 to better attract and retain talent.

Recommendations

Employers must recognize that pretty privilege is a societal construct that can be addressed and mitigated in the workplace by taking the following steps:

• Regularly review your policies and practices, with a focus on professionalism and dress code policies, to ensure compliance with Title VII and state and local appearance discrimination laws.
• Structure hiring and promotion processes with objective, consistent criteria to reduce bias in the decision-making process.
• Train managers and employees on implicit and unconscious bias.
• Empower all employees to embrace their unique strengths, talents, and contributions and encourage a culture of confidence, self-worth, and authenticity.
• Provide equal access to professional development opportunities, networking events, and leadership training.
• Establish and enforce zero-tolerance policies for workplace discrimination and retaliation.

Pretty privilege is a pervasive but often overlooked phenomenon in the workplace. By acknowledging its existence and taking proactive steps to address it, employers and employees can create a more inclusive and equitable work environment where individuals are valued for their skills, contributions, and character, rather than their appearance.

Written with the assistance of Alexis Cashman, a summer associate in the Husch Blackwell LLP Milwaukee office.

[1]  Dion, Berscheid, & Walster, 1972; Dion & Berschield, 1974; Hosada, Stone-Romero, & Coats, 2003; Langlois et al., 2000; Principe & Langlois, 2013.

[2] Hosada et al., 2003; Johnson et al., 2010.

[3] For a more detailed summary of the CROWN Act, see Hair Discrimination – Does Your “Professional Dress and Hygiene “ Policy Make the Cut?

[4] For a more detailed summary of New York City’s existing and proposed bills covering employee appearance, see NYC Employers Take Note – New and Proposed Anti-Discrimination Laws Coming Your Way.