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.
Pointer: Advice Goddess Blog
Source: Boston Herald
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