The Injustice of Appearance in Life and Law

By Deborah L. Rhode

252 pp. Oxford University Press. $24.95

To the Stanford law professor Deborah L. Rhode, this is a rare and signature triumph against the cruelty and waste that are the effects of appearance-based bias. She points out that Portnick’s size didn’t interfere with her teaching, yet Jazzercise shut her out reflexively. And in almost every other place in the country, that would have been that. Portnick would have had no legal remedy. Rhode’s new book is her brief for changing this. She sees discrimination against people based on what they look like as deep-seated — and she also has deep faith in the power of law to address it.

As Rhode acknowledges, her framework for “The Beauty Bias” owes much to “The Beauty Myth,” by Naomi Wolf, which lit up the feminist stratosphere almost 20 years ago. Wolf argued that because appearance matters so much for their success — in work, love and almost everything else — women were sacrificing the gains of feminist liberation on the altar of breast implants and doomed diets.

It would be lovely to dismiss this analysis as outdated. But of course it isn’t, as Rhode convincingly shows. Cosmetic surgery has quadrupled over the last decade. Women still wear stiletto heels that ruin their feet and backs and buy any wrinkle-smoothing cream for any price. Being fat, Rhode says, continues to carry “as much stigma as AIDS, drug addiction and criminal behavior.” (Meanwhile, men walk around largely unplagued by their imperfections. Unless they’re short, in which case they suffer, too.)

It does no good to urge women to sally forth in sensible flat shoes while their hair grays and their faces prune. Feminists learned long ago that taking this line only makes enemies. Rhode has internalized the lesson. When she points out that there is no visible gray hair on the heads of any of the 16 female United States senators, ages 46 to 74, she chalks it up to “professional necessity.” Rhode herself is a blonde (I’ve met her and once edited her work for Slate). But that hasn’t saved her from “emergency remedial shopping” at the hands of her Stanford colleagues and a stylist who disastrously teased her hair before a fancy event that she was supervising for the American Bar Association’s Commission on Women in the Profession. (Yes, Rhode sees the irony in forced primping for an event to promote women’s equality.) Instead of berating herself for succumbing to the fuss, she turns her inquiry from individual choices to the legal framework in which they’re made. Are cosmetic surgery and diet products safe and well-regulated enough? Are legislators and courts sticking up enough for people like Jennifer Portnick?

The Constitution bars discrimination on the basis of race, sex, religion, national origin and ethnicity. By contrast, only the state of Michigan and six locales — the District of Columbia; Santa Cruz, Calif.; Madison, Wis.; Urbana, Ill.; and Howard County, Md., along with San Francisco — have laws that protect against appearance discrimination. Rhode understands that plenty of her readers will think it “asks too much” to add this new category to the list of legally protected groups. “From their perspective, even if such discrimination is unfair, the law is incapable of eliminating it, and efforts to do so will result in unwarranted costs and corrosive backlash,” she writes.

But before the libertarians spit out their coffee, Rhode asks them to consider how “fat and short” laws have fared so far. She gathered the data and found that the six cities and counties average between zero and nine cases a year. Michigan averages about 30, and annually only one of those complaints goes to court.

Rhode sees no backlash against such sparing enforcement. She can plausibly claim that the upshot of extending protection against appearance discrimination to other states and cities would be not a “barrage of loony litigation” but rather a solution in a limited number of rankly unfair cases. She marshals the deserving examples: a nursing school student who was expelled because officials thought her obesity made her a bad role model for patients; a bartender who was fired in Reno for refusing to wear makeup and tease her hair; a cocktail waitress who lost her job at an Atlantic City casino when her dress size increased from size 4 to size 6.

If you fear that civil rights law is already bloated, you’ll probably be unmoved. But Rhode insists that she’s not conjuring up an overlawyered world in which aspiring models sue for losing work. She would allow businesses to select employees based on appearance in the same way they can legally select on the basis of sex: if it’s a “bona fide occupational qualification” for the job.

Rhode is also ready to concede that “on the reform agenda of women’s rights advocates, appearance does not deserve top billing.” She just wants to talk about the perils of high heels and weight requirements along with the wage gap. Ladies, think about it the next time your feet ache.

Date: 2015-04-20; view: 668