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Quote of the Day - Ugly is irrelevant. It is an immeasurable insult to a woman, and then supposedly the worst crime you can commit as a woman. But ugly, as beautiful, is an illusion. - Margaret Cho
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Is *Ugly* A New Class Deserving Of Employment Discrimination Protection?

You can add "ugly" to the protected classes of race, color, religion, sex, national origin and age, according to the California Supreme Court, who issued an opinion earlier this week in a case entitled Yanowitz v. L'Oreal.  Sure, that's a gross over-generalization, but I'm left with few other ways to characterize it.  Although it's a sixty-one page opinion, you can get through the facts in the first nine pages, and that will tell you most of what you will want to know, if you're an employer.
 
Here's a quick sketch.  Yanowitz was a successful, long-time employee of L'Oreal (flash site), and she ultimately became a Regional Sales Manager.  Side note here, Yanowitz' husband is a lawyer.  This fact becomes important later, one skipped over by the Court.  Now, though, back to our story.  Until the end of her employment, practically all of her reviews had been very good, even approaching excellent.  She had been dinged for only two minor points. 
 
Yanowitz was based in San Francisco, and her bosses, Messrs. Wiswall and Roderick were based in New York.  On a tour of a Macy's store in San Jose with Yanowitz, Mr. Wiswall disapproved of the "look" of a 'dark-skinned" sales associate (the Court's words, not mine).  Wiswall wanted someone "hot" and more "sexually attractive."  He instructed Yanowitz to fire the currrent sales associate and replace her.
 
Yanowitz did not comply with her boss' directive, and later on a second tour of the same store, Wiswall got even more frustrated when he found out the unattractive (in his mind) sales associate had not been terminated.  Despite Yanowitz' numerous requests, her bosses were never quite able to articulate a reason for terminating this sales associate other than that they didn't think she was "hot" enough.  From the Court's opinion, it becomes apparent that Yanowitz' bosses gathered negative evidence about Yanowitz - including auditing her expense report and criticizing it - in order to terminate her.  They changed her travel schedule and generally made life more difficult for her.  Ultimately, she went out on stress leave and never returned to her employment.  Interestingly, it turns out that the allegedly unattractive sales associate was that store's highest seller of L'Oreal products. 
 
Here's why it becomes difficult to characterize this case as anything other than establishing attractiveness as a new class deserving of protection under Title VII or Title IX:  Yanowitz filed a claim, presumably with the benefit of her attorney husband's advice, for discrimination against L'Oreal on the basis of sex, age (she was 53 at the time) and religion (she's Jewish).  Not once in the process of Yanowtz' challenges to her bosses or in her original claim did she argue that attractiveness was a protected class or contend that L'Oreal did not have the right to discriminate based on looks.  It was a legal fiction developed by the Court of Appeal. 
 
The Supreme Court observed that employees didn't have to know what classes were "protected," as long as they thought that the adverse action the company was taking was discriminatory.  Remember before when I noted that Yanowitz' husband was a lawyer?  Well, the point is that she most likely knew from her husband that "attractiveness" was not a protected class, and that consequently L'Oreal's instructions to terminate an allegedly unattractive sales associate was not a protected activity.  In other words, had it not been for this case, L'Oreal should have been able to terminate this sales associate based on her looks.  Now we know that if you had thought that, however, you would have been wrong based on this new case.
 
Why did it turn out this way?  Read the first nine pages of the opinion, and you'll see that the Court did not like the behavior of Yanowitz' bosses.  Bad facts yield bad law. 
 
Now, though, it would appear that you can't get fired for being ugly.  But what about jobs that require beauty?  Is the entertainment industry going to fold up and move out of Hollywood?  Will there be a change in Playboy bunnies? (somewhat safe to open at work)  Not likely.  But, if you're an employer, be careful why you want to terminate your employees.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, August 13, 2005 at 10:57 Comments Closed (4) |
 
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