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.

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.

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