Victims of 'Lookism' Face Uphill Battle

ByCatherine Valenti

May 13, 2003 -- Joseph Connor's job as a cook at a McDonald's in Hamden, Conn., never materialized, and he thinks he knows why — lookism.

Connor got the offer after attending a job fair in September of 2000. But when he and other newly hired workers reported to the restaurant to prepare for work, they were asked their clothing sizes for uniforms.

The 37-year-old New Haven resident, who weighs around 420 pounds, provided his, including a size 54 waist, says his lawyer, Gary Phelan of Klebanoff & Phelan in West Hartford, Conn.

After not hearing back, Connor called about the status of his job, only to be told his uniform pants weren't ready yet, recounts Phelan. For months, he got the same response. Finally, Connor went to the restaurant in person to talk to the manager, but was told a new manager was in charge and wasn't available to speak to him.

But at the restaurant that day, Connor noticed many of the other workers he had been hired with were already working behind the counter. And, Phelan adds, none were wearing uniform pants provided by the company.

Connor’s Not Alone in Suing Over Looks

It was not long after that Connor decided to sue McDonald's for discrimination in violation of the Americans with Disabilities Act and the Connecticut Fair Employment Practices Act.

Last month, a federal judge refused to dismiss his almost two-year-old suit against the company. McDonald's did not return calls for comment.

But Connor's suit is just one of a series of recent cases where workers took legal action against their employer or prospective employer for allegedly discriminating against them or others based on their appearance.

While some of the cases seem like clear-cut discrimination, experts warn that in reality those who claim to have suffered discrimination because of their appearance have very little protection under the law.

"Appearance discrimination, as such, is not something that the law generally protects against," explains Sam Marcosson, associate professor of law at the University of Louisville in Kentucky. "That's where the problem comes in for a lot of people."

Few Laws Bar ‘Lookism’

Because no federal laws protect against discrimination based on appearance — and only a few U.S. communities, like Santa Cruz, Calif., have such laws — plaintiffs often must prove the discrimination is based on other factors.

The basis of the discrimination could be alleged, for instance, to be a disability or the perception of a disability. Or the basis could be that the person is being discriminated against by being held to an appearance standard members of the opposite sex or another group aren't expected to meet. Also illegal is discrimination based on age.

"Even if an employer has a right to set certain appearance and grooming standards, it can only do so as long as it does not discriminate against a particular sex, race or religion," says Eric Matusewitch, deputy director of the New York City Equal Employment Practices Commission in Manhattan.

Connor's suit against McDonald's, for example, claims the company violated laws by regarding him as morbidly obese and not hiring him because of that perception. He also claims his weight is a disability under Connecticut state law and McDonald's is violating that by refusing to hire him.

McDonald’s in Another Appearance ‘Disability’ Case

Another recent case also involves McDonald's. Samantha Robichaud, a former McDonald's employee, filed suit against the company, claiming it discriminated against her when it denied her a management position because of a cosmetic disfigurement known as Sturge Weber Syndrome, a condition that has left her with a purple-colored "port-wine stain" on a significant portion of her face.

The Equal Employment Opportunity Commission recently filed a federal lawsuit in Birmingham, Ala., accusing the McDonald's franchisee in question of violating the Americans With Disabilities Act, or ADA, because the company's perception of Robichaud having a disability prevented her from getting promoted.

Neither Robichaud nor her lawyer would comment for this article, but the EEOC said the case was the first lawsuit filed in Alabama involving facial disfigurement.

"We believe it is important to educate employers that the ADA requires a focus on what people can do, not how they are perceived," said Cynthia G. Pierre, District Director of the EEOC's Birmingham District Office in a statement.

Standards of Beauty

Another case out of San Francisco involves a woman named Elysa Yanowitz, a former sales manager at L'Oreal, who says a supervisor told her to fire one of her saleswomen for not being good looking enough in late 1997.

Yanowitz refused to fire the woman, and became a victim of what her husband and lawyer Herbert Yanowitz says was a campaign to try to get her to leave the company that included soliciting negative comments about her from her employees, denying her requests for additional workers and giving her a rigorous travel schedule.

"They were trying to undermine her authority and effectiveness with her staff," he says.

In July of 1998, she went on disability leave, no longer able to handle the stress she was under at the job. Yanowitz decided not to go back to L'Oreal and filed suit against them in 1999 for under California's Fair Employment and Housing Act, seeking compensatory damages for emotional distress and loss of earnings, as well as punitive damages.

While her suit was originally dismissed on a summary judgment, a California appeals court recently ruled she can file a claim on the grounds of sexual discrimination for an order to fire a female employee on standards of attractiveness male employees were not expected to meet.

"My wife had hired a number of men over the years and she was never told that she had to consider physical appearance for them," says Herbert Yanowitz.

L'Oreal's lawyers have asked the California Supreme Court to review the case. In a statement, the company says it does not tolerate any form of discrimination in the workplace and would not comment further on the specific details of the case, but noted that many of her claims to date have been dismissed by the court.

Good Looks, Better Pay?

While some legal advocates say more needs to be done to prevent discrimination based on appearance, others say such a law would violate a company's right to have appearance standards for its employees, something that is legal as long as it's applied evenly to workers.

Further, some jobs, such as modeling or acting, may require a person to have a specific kind of appearance, and these employers have the right to ask for a certain "type" for a particular assignment.

"They're allowed to go and hire thin models if they want to, and that's not discrimination," says David Blanchflower, an economics professor at Dartmouth College. "It's unclear that the government needs to get into these kinds of things."

Yet research shows attractiveness, or what society deems attractive, can affect what workers earn.

One long-term study co-authored by Blanchflower of more than 12,500 British 16-year-olds found obese girls and short boys earned less than their thinner and taller counterparts by the time they reached the age of 23.

Another study in 1994 found people with below-average looks got anywhere from one to 15 percent less pay than their counterparts. People with above-average looks earned a pay premium of ranging from one percent to 13 percent.

Daniel Hamermesh, professor of Economics at the University of Texas at Austin, who co-authored the latter study, predicts bias based on looks will only increase as the service sector continues its dominance of the U.S. economy and face-to-face contact becomes more important.

"We insist on being treated by somebody that we enjoy looking at," says Hamermesh. "The solution is getting us all to realize that this isn't so important."

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