FAIREST WHO IS THE OF THEM ALL? B 34


eauty may offer a competitive edge, but in today’s litigious society, it can work for you or against you. In the legal profession, just the whisper of discrimination cases filed because of what is being popularized as “lookism” draws reactions ranging from dismissive smirks to palpable annoyance at what may seem to be an abuse of the legal system. But numerous employment-based discrimination com-


plaints—whether one is charging they were discriminated for being beautiful or not beautiful enough—filed in this nebu- lous area of law are creating a reason for the legal profession to pay closer attention, say those who consult on those cases. While some may have thought it to be an anomaly, one


high-profile beauty discrimination case has at least proven that there are people prepared to debate the matter in court. Last December, dental assistant Melissa Nelson alleges


she was fired for being “too attractive,” and “irresistible” and that her boss accused her of posing a “threat” to his marriage. Nelson worked for dentist James Knight for more than ten years. Knight complained that Nelson, who is married, wore tight clothes and that his wife demanded that he fire her, even though there were no reports of flirta- tious conduct. Her employer acknowledged that he had no problem with her work; it was his own attraction that made


DIVERSITY & THE BAR® MARCH/APRIL 2013


him believe an affair would be “inevitable.” Even though Nelson sued her employer for sex discrimi-


nation, she argued that she was being fired for being too “hot” for the dentist. Te all-male Iowa Supreme Court unanimously upheld the firing as lawful and separated beauty from sex discrimination. James McDonald, managing partner of the Irvine (CA)


office and a partner in the Los Angeles office of Fisher & Phillips LLP, frequently writes about beauty bias. His litiga- tion involves various types of employment disputes. “We don’t have a law in California that covers appearance


discrimination,” McDonald says. “Several lawyers have tried to create case law. Religious clothing cases are much more prevalent. Last year the legislation enacted additional protec- tion for religious dress and appearance. Tose areas have been protected under the law for some time. It doesn’t cover whether someone is not attractive enough or too attractive.” Although the federal government does not recognize


physical attractiveness or unattractiveness as a protected category, some states and jurisdictions have taken steps in this direction. For example, Michigan, San Francisco, Santa Cruz, Calif.; Madison, Wis.; Urbana, Ill.; and Howard County, Md., prohibit discrimination based on appearance. Te District of Columbia has made “personal appearance” a protected category under its anti-discrimination law. Te legislation, however, has not opened up a floodgate


of litigation as some predicted. Te cities and counties receive no more than nine complaints a year—some not at all. While complaints in the state of Michigan total about 30, less than one a year ends up in court. Although Washington, D.C. has the most comprehensive


law prohibiting employment discrimination based appearance, attorney Debra Katz, a partner with Katz, Marshall & Banks in D.C., said she doesn’t anticipate seeing a groundswell of cases similar to the beauty discrimination case in Iowa.


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