Can You Legislate Against The Beauty Bias?

A new book recommends that we prosecute appearance discrimination as strictly as we do racial or gender bias. But is that even possible?

Dahlia Lithwick opens her Slate review of Deborah Rhode’s The Beauty Bias with — of course — a reference to SATC2. She writes,

If you are anything like me, you left the theater after Sex and the City 2 last week and thought to yourself, “There ought to be a law.” A law against 40-plus-year-old women starving, sawing, and Spanxing themselves into brittle 27-year-old bodies. A law against a looks-based culture in which the only way for 40-year-old actresses to be equitably compensated is to have them look and dress like their teenage daughters. You can’t even look at Sarah Jessica Parker anymore without longing to sit on her chest and feed her croissants.

This is a softer version of a (sadly) more common complaint — that Sarah Jessica Parker is ugly, and that she and her costars are now too old to play women who have sex and fun. Even Lindy West’s very funny review in The Stranger had a hint of this (“Carrie et al.’s emaciated goblin shoulders”), and there’s a fine line between complaining that women look bad when they’re trying to seem younger or slimmer than they naturally are, and claiming that older women look bad, period. Which is just one of the reasons why Rhode’s recommendation — in Lithwick’s words, “a legal regime in which discrimination on the basis of looks is as serious as discrimination based on gender or race,” would be so difficult to enforce.

Rhode alleges that “the penchant to discriminate against unattractive women (and also short men) is as pernicious and widespread as bias based on race, sex, age, ethnicity, religion, and disability” — and accounts of employees fired for gaining weight or breaking out, as well as a disturbing study showing college students would rather marry an embezzler than an obese person, bear out the hazards of deviating from cultural norms of attractiveness. So is more legislative oversight the answer? Lithwick lays out several depressing reasons why it might not be. First there’s the slippery slope argument — Andrew Sullivan apparently thinks Rhode’s plan would lead to laws that protect “the short, the skinny, the bald, the knobbly kneed, the flat-chested and the stupid.” Why it would be bad to bar employers from firing on the basis of traits like baldness isn’t really clear, but Rhode argues persuasively that her proposal wouldn’t lead to lots of frivolous lawsuits. Really, it might do too little, rather than too much.

Beauty is more subjective than either race or gender, and so proving appearance discrimination might be much harder than substantiating discrimination of other kinds. It also might be difficult to drum up popular support for Rhode’s proposed legislation or the lawsuits it might engender, because while many people identify themselves strongly as women or minorities, fewer self-identify as unattractive. And why should they? To do so is, in a sense, to accept an outside social evaluation of one’s body, which is exactly what Rhode’s proposal seeks to lessen.

Rather than legislating beauty, perhaps we ought to be focusing on more discrete, measurable attributes such as weight and age. The fat acceptance community already has a strong tradition of activism against weight discrimination, while also arguing that fat people can be sexy and beautiful. As Lithwick notes, women like feeling pretty (I’d add that some men do too). But there’s a difference between being beautiful (or attractive or sexy or hot or any of the other many, many words we have for the intersection of appearance and desire) and conforming to a certain set of social standards, and it’s these standards we should really be working against. We may never be able to legislate concepts as complicated as attractiveness, but surely we can prevent waitresses from being fired for gaining weight — and perhaps even actresses from being pilloried for being too old. And then we could focus less on Carrie Bradshaw’s “goblin shoulders” and more on the (potentially unattractive) ideas going through her head.

Should It Be Legal To Fire The Unattractive? [Slate]
The Beauty Bias: The Injustice Of Appearance In Life And Law [Slate]