Legal: Hey, Good Lookin': Sex Discrimination in Hiring Reps

Most of us prefer good-looking people to less attractive ones. Pharma seems to believe that doctors do, too. A recent New York Times article examined the industry's recruitment of cheerleaders, most of whom are attractive young women ("Gimme an Rx! Cheerleaders Pep Up Drug Sales," November 28, 2005). In the article, Dr. Thomas Carli of the University of Michigan observes, "There's a saying that you'll never meet an ugly drug rep." Hiring the beautiful might be good for business, but it also might be challenged as discrimination in a court of law.

James McDonald, Jr.

Until recently, employers have mostly been free to discriminate against the unattractive. In the United States, only a few places, like the District of Columbia and Santa Cruz, California, have laws prohibiting discrimination in employment based on physical appearance. Elsewhere, employers can factor looks into employment decisions without fear of reprisal.

Thinner and Cuter

Instead of relying on disability law, which failed in the "looks" lawsuits tried a few years ago, plaintiffs typically allege sex discrimination today. And until recently, courts took a dim view of the claim that preferring a more attractive employee to a less attractive one of the same sex constituted sex discrimination.

For example, in Marks v. National Communications Association (1999), a 270-pound telemarketer sued after she failed to obtain a promotion to an outside sales representative. One of her supervisors told her: "I've told you, [in] outside sales, presentation is extremely important. Lose the weight and you will get promoted." The plaintiff claimed that another telemarketer had obtained the promotion because she was "thinner and cuter." The sex discrimination lawsuit attacked what she described as "improper and discriminatory stereotypes" of the "acceptable appearance of a female" on the part of her employer.

The court threw out the case. It observed that "discrimination based on weight alone, or on any other physical characteristic for that matter, does not violate Title VII of the Civil Rights Act of 1964 unless issues of race, religion, sex, or national origin are intertwined." The court found that the plaintiff failed to prove her case because she could not identify any overweight men who were working as outside sales representatives.

"Get Me Somebody Hot"

A California Supreme Court decision last year, however, suggested that employers' preference for more attractive employees over less attractive ones of the same sex might amount to sex discrimination.

In Yanowitz v. L'Oreal USA, the plaintiff was a manager in a fragrance and cosmetics company who refused her boss's order to fire a saleswoman because he found the woman insufficiently attractive. After a walking tour of a department store, the plaintiff's boss told her he thought the sales associate was not "good looking enough," and he ordered her to "get me somebody hot." When the boss returned to the store some time later and found the unattractive saleswoman had not yet been replaced, he pointed to a young, attractive, blond woman and told the plaintiff: "God damn it, get me one that looks like that." The plaintiff never carried out the order. After receiving a series of negative performance reviews, she went on stress leave and ultimately sued, alleging she had been retaliated against in violation of the California Fair Employment and Housing Act.

The court considered whether the plaintiff reasonably believed her boss's order to fire an unattractive female reps was unlawful sex discrimination. It found she did, because she claimed she had supervised male and female reps over the years and had never been ordered to fire a male rep for being unattractive. The court held that enforcement of an "unequal standard of attractiveness" might be unlawful. It declined to decide the issue of whether a "gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive" would violate the law, but just by raising the issue, the court may have opened the door to more lawsuits.

The court also left open the possibility that employers might be able to argue that physical attractiveness is a "bona fide occupational qualification" (BFOQ) for certain types of jobs. This is a troubling comment, however, because the burden of establishing a BFOQ is on employers. Under such a standard, a drug company would have to show that a sales rep would be unable to perform the job of selling drugs unless he or she was physically attractive. It is not enough that customers (e.g., physicians) might have a strong preference for attractive salespersons. That customer preference is almost never a valid BFOQ was established many years ago when the courts struck down the airlines' practice of exclusively employing young attractive women as flight attendants.

It is important to keep in mind that the plaintiff in the Yanowitz case was the manager who was forced to quit for refusing to fire the unattractive saleswoman, and not the saleswoman herself. A different legal standard applies in a retaliation case versus a discrimination case; in the former, a plaintiff need only show a good faith, reasonable belief that conduct was discriminatory, not that it actually was discrimination. Although the California court thus stopped short of holding that an employer's preference for attractive reps is illegal, it may set the stage for future cases in which courts will be urged to adopt such a holding.

Who is Ugly Enough to Sue?

With respect to most categories in discrimination law, such as race or age, it is relatively easy to determine whom the law protects. But where appearance discrimination is concerned, it is difficult to determine who qualifies as "unattractive." Early cases may involve plaintiffs with facial disfigurements or obesity. But as the law develops, some plaintiffs may be merely plain or homely. A bizarre exchange is likely to occur in court as these cases are argued. The employer may assert: "She's not ugly enough to qualify for the law's protection." The plaintiff retorts: "Oh yes I am!"

Will a certain level of unattractiveness be necessary to file a lawsuit? How will it be established? Will the government attempt to establish a national standard of attractiveness? Or will this be left to judges and juries to decide on a case-by-case basis? Will beauty contest judges find lucrative careers as expert witnesses? These questions, though a bit fanciful, illustrate the kinds of problems likely to result if this trend in the law continues.

How Can Pharma Prepare?

It is too soon to tell if pharma companies will become targets of class action lawsuits filed on behalf of job applicants who purportedly were not hired because of their looks. But some steps can be taken now to help avoid problems later.

First, if standards of attractiveness are to be applied in the hiring process, they should be applied to men and women. This will prevent plaintiffs from invoking sex discrimination laws by pointing to unequal standards of attractiveness.

Second, when documenting sales hires, management should refer to other traits and qualities important to succeeding in pharma sales, such as successful sales experience, demonstrated people skills, or participation in activities like sports or cheerleading that demonstrate competitiveness and enthusiasm. References solely to an applicant's appearance should be avoided.

Third, pharma should have strict policies in place against harassment of employees, including sales reps. Many jurisdictions hold employers liable when customers or vendors harass employees. Such a policy may also help counter charges that sales reps are implicitly encouraged to use their sexuality as a sales tool. Since most reps work in the field, companies should establish telephone "hotline" numbers so reps can report harassment by physicians.

Companies should take decisive action against physicians or others who harass sales reps. Salespersons should also be strictly admonished against dating or engaging in sexual relations with the physicians on which they call.

Finally, industry must guard against efforts by state legislatures to outlaw physical-appearance discrimination. While federal legislation is unlikely, states may be tempted to experiment with this legislation. To that end, companies should educate legislators about the problems inherent in this legislation, and the likely impact on the courts' workload if employees can sue when they feel disadvantaged against because of their looks.

James McDonald, Jr. is managing partner of the Irvine, CA office of Fisher & Phillips. He can be reached at jmcdonald@laborlawyers.com