Is It Fair For A Business To Discriminate Against the Homely?

 

Take your pick!

The EEOC is investigating a popular Boston area coffee shop chain, alleging that it discriminates in favor of attractive young waitresses to the detriment of older or more homely waitresses. The management of Marylou’s disputes the accusation, arguing that its hiring pool is disproportionately young and attractive.

I don’t want to get into the actual guilt or innocence here, but rather muse about the ethical issue. Should there be laws preventing employers from using attractiveness as a criteria in hiring, if it is relevant to the success of the business, or even if it is not? If a coffee shop owner’s patrons are overwhelmingly male, and the owner believes that having waitresses who look good in a starched uniform makes the customers happy and more likely to spend their money, why should the law prevent that? Is there anything really wrong with the conduct?

I am well aware that the does prevent it in many cases. Employment law permits a business to discriminate on the basis of gender, age, fitness or attractiveness only if these are bona fide occupational qualifications, that is, not just qualities that would be nice to have, but genuinely “necessary” to the normal operation of a particular business. Making customers happy or attracting them with aesthetic enticements  is not enough to sustain a bona fide occupational qualifications defense, as was settled in several cases against the airlines.  As a result, where once the friendly skies were populated almost exclusively by shapely young women, the average crew serving you your pretzels today consists of gay young men and Kathy Bates clones. Hooters has, so far at least, ducked the EEOC by successfully arguing that its busty waitresses are part of the chain’s business, akin to dinner theater, except that it is more like “dinner harassment.”

I find Hooter’s distasteful, and I also live where the discrimination on the basis of appearance is most blatant and disgusting—Washington, D.C. When one cruises in the vicinity of the Capitol at lunch time, the number of stunning young women strutting around in short skirts makes you think you have stumbled onto the movie set of “Hot Cheerleaders Go To Congress.” This is because our overwhelmingly male, middle-aged and horny elected Representatives and Senators shamelessly flaunt their own laws and make being a gorgeous hard-body who looks good in a thong a criteria for hiring secretaries and staff. It has been a D.C. scandal for decades, but for understandable reasons, the EEOC wants to keep its budget intact, and lets the old fools hire their eye-candy. Does this mean that Congressional staffs are not all they could be, at least in the qualifications and gray matter categories? I think you can answer that for yourself. Of course, homely politicians have trouble getting elected, too.

Yet why should physical attractiveness be treated differently than other positive traits that make an individual a desirable employee, like intelligence, a quick wit, or a charming personality? Why is it unfair for employers—other than members of Congress, that is—to decide that having someone around the office or workplace who is an aesthetic enhancement is a good enough reason to choose one job applicant over another who may have other virtues but who is built like Cedric the Entertainer and whose face stops a clocks and turns small children to stone?

I think a strong argument could be made that it is unfair to attractive people to legislate their best competitive advantage out of existence, especially when it has been shown in study after study that our appreciation of the bodily and facially lovely is innate and real. It’s not bias, it’s biology.

Yet, taking everything into consideration, I must reluctantly side with the EEOC. In principle employers should be able to favor the attractive; in practice, doing so allows too much prejudice against seniors, gays and minorities to piggy-back on “lookism.” It is a classic example of a practice that isn’t itself unethical, but that makes other unethical conduct so much easier and more likely that it has to be treated as if it is unethical too.

I don’t know whether Marylou’s has been discriminating in favor of comely waitresses or not, and if they have, I can’t say I blame them. Yet it is a luxury that is too easy to abuse. With great regret, because I like being served by beautiful girls too, preventing rampant hiring prejudice has to trump freedom and fairness.

Utilitarianism can be ugly.

Literally.

_______________________________________________________

Pointer: Advice Goddess Blog

Source: Boston Herald

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.

28 Comments

Filed under Business & Commercial, Gender and Sex, Law & Law Enforcement, U.S. Society

28 responses to “Is It Fair For A Business To Discriminate Against the Homely?

  1. Jeff

    The one major hurdle here is that not everyone agrees what’s attractive and what isn’t. For instance, I really don’t get what the big damn deal is about Angelina Jolie (or Julia Roberts, for that matter). Furthermore, the reverse could be invoked. “You just didn’t hire me because you had to hire someone not beautiful!” “No, I didn’t hire you because your beauty has led you to becoming an entitled brat with no relevant skills in carpentry.” “That’s discrimination against people who don’t know what awls are!”

    • “I do so know what awls are! What does some bird have to do with cutting wood!?”

      I always feel a little less alone in the world when another person expresses similar confusion over the widespread obsession with Brad Pitt’s lady, Fishlips McGee.

  2. Tom Fuller

    For a sharply-worded comment espousing one view on this topic, we can look to the lawyer and activist Florynce Kennedy (1916-2000): “There are very few jobs that actually require a penis or vagina. All other jobs should be open to everybody.” (quoted in Ms. magazine, March 1973)

    • Sadly anachronistic, don’t you think, in a day when its impossible to know whether or not an attractive waitress at Marylou’s has a vagina, a penis, or something in between?

  3. Interested Blogger

    I’ll weigh in on this one from personal experience. In the business world, there has always been a bias toward attractive tall men. Attractive women, on the other hand, have often been viewed as less intelligent (until proven otherwise) – simply by virtue of being so … attractive. Most coffee shops, small restaurants, etc., are getting applications primarily from young people looking for 1st jobs. Seasoned, experienced waiters/waitresses are more likely to be looking for work in restaurants that require a higher level of skill and professionalism that are less likely to care about age/beauty. The 4-star cuisine restaurant I played piano in while in college had wait staff with an average age of 50. People who are older/less attractive looking for work in coffee shops and claiming they’ve been discriminated against because they weren’t hired (and younger people were) may be overweight, not able to keep up with the physical pace/demands of the job, may not want to work for minimum wage, etc.

    • tgt

      Basically, what you’re saying is that the places where service and experience are important have a smaller talent pool than the places where it is less so. As such, the people who were used to that smaller pool may see they are more qualified than the people hired out of the larger pool, but they may not realize that their skills aren’t an advantage anymore or even recognize that in a larger pool their chance of being hired is considerably more difficult.

      I agree with that.

  4. James Flood

    This story is further evidence that all anti-discrimination laws should be abolished. An employer should be allowed to discriminate for ANY reason, regardless of how foolish it might appear. If a business is known to be racist sexist, anti-semitic, anti-anything, etc. word will get out (especially in this age of information) and Americans, who are generally fair-minded, will avoid the business. There will always be discrimination on some level; the belief that we can eliminate it is fatuous. But the free market will do a better job of policing it than the ham handed EEOC and fellow travelers like Gloria Allred.

    • Tim LeVier

      I have to disagree. I think we’ve got just about the right balance. While I respect your opinion and your ideals (I would hope one day we could get there) I think the bad businesses would benefit from a situation where there was information overload.

      How many businesses right now are there that have wronged an employee? Quite a few I’d wager, and I’d further wager that the accusations are readily available for those who go looking. To add to the situation with no fear of government intervention, employees would drum up so many complaints immediately, rightful and wrongful complaints. Every situation would have to be prosecuted in the press and with picket signs.

      My fear would be that Businesses would be able to (or be perceived as being able to) squash helpless employees… until the employees formed unions and/or labor councils.

      I’d be interested if you think the scenario would turn out differently.

      • James Flood

        Tim: I’m not arguing for utter lawlessness, just against anti-discrimination laws. They don’t achieve their stated goal and end up being used as a cudgel for political and financial gains. They also have the opposite effect of making an employer less likely to hire someone from a “protected” class out of fear that they are acquiring a lawsuit time-bomb.

        • tgt

          [Anti-discrimination laws] don’t achieve their stated goal,

          Citation needed.

          and end up being used as a cudgel for political and financial gains.

          Citation needed.

          They also have the opposite effect of making an employer less likely to hire someone from a “protected” class out of fear that they are acquiring a lawsuit time-bomb.

          Citation really, really needed.

          This is libertarian dogma which has no more backing than trickle down economics.

          I consider myself pretty far on the libertarian axis, but I recognize that reality doesn’t always match my desires.

          • James Flood

            All of these arguments have been advanced by Judge Richard Posner. You may not agree with him, but you should at least take his arguments seriously.

            (Following summary from Federalist Society):
            Richard A. Posner, The Efficiency and Efficacy of Title VII, 136 U. Pa. L. Rev. 513 (1987). Argues that employment discrimination laws are economically inefficient, because they disallow employers from making rational economic decisions about hiring and firing employees. Judge Posner also notes that employment discrimination laws impose huge costs on society, largely stemming from the large number of employment discrimination cases litigated each year. In addition, Posner argues that employment discrimination laws do not actually help the minority groups they are intended to benefit; rather, by making it more costly for employers to hire, retain, and fire minority workers, the employment discrimination laws actually give employers a strong incentive to avoid hiring minority workers altogether. Hence, Posner concludes that the massive costs generated by Title VII are a “dead weight loss” to society. For an overview of the law and economics literature on the regulation of employment, consult chapter 11 of Richard Posner, Economic Analysis of Law.

            • tgt

              No, I don’t take your appeal to authority seriously. Also, Posner assumes that hirers are both rational and actively immoral. Without both of those, his argument falls apart.

          • Common sense needs no citation, Tiggy, except among those who would issue citations on reality in order to bring it online with their pet theories. This is known as “political correctness”, BTW. In the final determination, a business must satisfy its customers and its own reason for existence. You may (or may not!) have moral qualms about such businesses as Hooters. I do, for what it’s worth. But regardless, their entire theme centers around young men partying it up while being served by hormone stirring, well endowed young women. It was probably the same in Sumerian caravanseries 6,000 years ago. Attractive women attract male customers. We may argue on how revealing those “attractions” should be by law and/or in good taste, but human nature is what it is. And the right of a property or business owner to set his own hiring standards should not be infringed upon. If they are foolish or abusive in their methods, the free market and a free press (in a free, moral society) will see to their demise.

            • tgt

              Common sense needs no citation, Tiggy, except among those who would issue citations on reality in order to bring it online with their pet theories.

              What you call common sense here is untested theory. It was common sense that women are less smart than men, drinking 8 glasses of water a day is good for you, that you should slab butter on sunburns, and that the sun revolves around the earth. Especially in economics, common sense absolutely needs a citation.

              If they are foolish or abusive in their methods, the free market and a free press (in a free, moral society) will see to their demise.

              The myth of the free market is alive and well. As noted previously in this thread, you need rational, high information, non discriminatory populace for this to work.

    • tgt

      The market will fix all because consumers tend to be rational, high information actors without unconscious (and conscious) prejudices.

      So you’re libertarian, but not sane. Got it.

      • James Flood

        No, you missed the point entirely. I never said people were without prejudices and never said the market could ˝cure˝ those who did. People will always discriminate and it’s Utopian fantasy to think it can be eliminated through legislation. Such legislation creates preposterous situations like that on the article.

        • tgt

          I understood your point completely; and I pointed out the ridiculous assumptions that they depend on. The rational market requires a super, super majority of rational, high information actors without prejudices. We don’t have that situation.

          I’m trying to figure out how you got “cure” out of my post. I can’t find it. Your misrepresentation of my post shows that even seemingly intelligent people can’t be trusted to behave as rational actors.

          • James Flood

            My point is that a market without prejudices is an impossibility and therefore not a worthwhile goal. It’s not so much an assumption but a way of viewing human nature.

            I read your post as a sarcastic take on the notion that the free market would fix all; a straw argument, as that is the exact opposite of what I said. I only argued that the market was the preferable option. It was a mistake for me to put cure in quotes, however, as you did not use the word. It was late and I’m not sure why I did that.

            • tgt

              You’re moving the goalposts. Also, your assumptions necessary for your point to be valid are still false.

            • If a market without prejudices is an impossibility, why would you cancel laws that provide some sort of relief? I’m also not sure about where you live, but in Colorado, we have what’s referred to as “At Will” employment. You can fire an employee at any time for a non-discriminatory reason. Businesses are just as nimble as they need to be. If they’re getting sued, then they didn’t exercise enough caution in their documentation and their compliance requirements.

              It’s a cost of doing business that has more value beyond making employment decisions. A business that has a robust compliance and documentation program is better all around.

  5. Curmudgeon

    Can’t recall name of elderly SCOTUS justice, Story: on pleasant days he liked to brown-bag and take his lunch on a bench in a nearby D.C. park. Washington is full of young lovlies, as noted.

    One spring day, with all the sweet young things passing by,, the justice was heard to sigh: “oh, to be eighty again!”

  6. tgt

    I support the equality laws in general, but attractiveness does seem to be an exception in some professions. Sex sells, as they say. An attractive barista most likely isn’t going to get you to order more at starbucks, but an attractive bartender or server at a restaurant? I believe the evidence shows it works. Most jobs aren’t subject to this issue, but certain sales or marketting jobs (i’m lumping all tv in with marketting)? Yea.

    The difficulty is that because sex sells, we’re likely to not only intentionally discriminate based on looks, but unintentionally do so as well, even when hiring for positions where looks mean nothing (like my job).

    I agree with Jack on this matter. I’m sympathetic to jobs where attractiveness improves business, but think we need the rules to keep greater injustices down.

  7. Michael

    So JP Morgan can explain that they lost $7 billion on bad trades because they were going to hire a CEO who knew what he was doing, but decided to hire an attractive one instead. They also decided to give him a $23 million bonus anyway because…just look at that hair!

  8. They have the right to hire whoever they want. Would you want fat ugly girls working at Hooters? I don’t see the EEOC investigating all black colleges/organizations or making a stink about conservative actors being blacklisted from Hollywood.

    • Apples, grapes, watermelons and peaches. Hooters has been judged to meet the bona fide occupational qualifications standards, aka “Would you want fat ugly girls working at Hooters?” A regular coffee shop where they DON’T force girls to wear degrading and uncomfortable jerseys that are three sizes too small doesn’t qualify. All black colleges don’t involve employment (they still have to hire without regard to race), and there’s no way to force a studio to hire an actor, or to prove why an actor wasn’t hired for a particlar role.

      • tgt

        To stave off a likely response, I’d throw in that the candidates to teach at all black colleges likely skew considerably more black than the candidates to teach at other colleges.

        I’d complain that the inability to prove why an actor was/wasn’t hired isn’t really relevant, as political beliefs are not inherent, and, as such, are properly not a protected class. Again, expecting a come back, actors are very much in the marketing field where their looks and public perception do directly apply to their jobs.

      • James Flood

        Jack: you are correct that under the law Hooters has been judged to have met the standard, but aren’t you a bit uncomfortable with the legislature or judiciary determining what is “necessary” for a business? If a coffee shop says that their business is dependent upon a staff of winsome baristas, their success or failure should settle the matter. Doesn’t the reasoning in the Hooters case just encourage relatively tame establishments to slut things up to protect them from the law? There’s actually a coffee shop in Washington state in which the girls not only wear next to nothing, but have 9 webcams well-positioned and live streaming on the internet while they work. I’ve seen them; they meet the Hooters standard.
        Apples and oranges I know, but I am also reminded of the Supreme Court decision in Casey Martin v. the PGA in which the court determined that walking was not an “essential” part of the game. If you haven’t read it (but suspect you have) I highly recommend Scalia’s brilliant and hilarious dissent in which he applies the courts reasoning to other (apparently Platonic) rules of golf and beyond.

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