Question

Over the weekend I read an article stating that good-looking people get paid more and are promoted more frequently than people with average or below-average looks. The article specifically mentioned that obese women earn 70% less than average weight women. At a minimum this seems unfair. Is it also illegal discrimination?

Answer:

This is an interesting issue. While it may seem unfair that good-looking people are often paid more and promoted more frequently than average or unattractive people, because an individual’s attractiveness is not a protected classification, an employer’s preference for an employee based on their attractiveness is not, per se, illegal discrimination.

The two primary laws that govern illegal discrimination in the workplace are the California Fair Employment and Housing Act and Federal Title VII. Pursuant to the California Fair Employment and Housing Act the following characteristics are protected: race, color, ancestry, national origin, age, gender, gender identity, sex, pregnancy, child birth or related medical conditions, marital status, religious creed, physical disability, mental disability, medical condition (certain cancer related conditions and genetic characteristics), and sexual orientation.

If an employer’s preference for a certain look implicates one or more protected classifications, that preference might be illegal discrimination. For example, an employer cannot hire a young applicant over an older applicant because he or she prefers a youthful appearance. Likewise, an employer cannot promote a Hispanic employee over an Asian employee because he or she believes a Hispanic employee is more attractive. A male employer cannot hire more female employees because he finds them more attractive. The same analysis would apply to preferences based on any characteristic that is specific to one or more of the protected classifications.

With respect to the issue of obese women being paid less than average weight women, weight is not a protected classification unless it is also a disability within the meaning of the California Fair Employment Housing Act or the Americans With Disabilities Act. In Cassista v. Community Foods, Inc., the court held that the plaintiff could not state a claim because she could not demonstrate that her obesity was a physical handicap as the term was defined in the California Fair Employment Housing Act. This is because she could not establish that her obesity resulted from a physiological condition, which affected one or more of her body systems. If an employee can establish that his or her obesity is a physical disability, that person’s employer would be barred from making decisions regarding the terms and conditions of employment based solely on the fact that the employee is obese without first attempting to identify reasonable accommodations for that employee’s disability. Additionally, if an employee can show that there is a correlation between weight and age, or weight and a particular race, he or she could have a discrimination claim.

In conclusion, while it may not technically be illegal to show a preference to attractive individuals, such a practice is not only unfair, but also legally risky to the extent any preference implicates a protected classification.
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