My brain says no but my face cries, “Proceed.”
The effects are not small: one study showed that an American worker who was among the bottom one-seventh in looks, as assessed by randomly chosen observers, earned 10 to 15 percent less per year than a similar worker whose looks were assessed in the top one-third — a lifetime difference, in a typical case, of about $230,000…
For purposes of administering a law, we surely could agree on who is truly ugly, perhaps the worst-looking 1 or 2 percent of the population. The difficulties in classification are little greater than those faced in deciding who qualifies for protection on grounds of disabilities that limit the activities of daily life, as shown by conflicting decisions in numerous legal cases involving obesity.
There are other possible objections. “Ugliness” is not a personal trait that many people choose to embrace; those whom we classify as protected might not be willing to admit that they are ugly. But with the chance of obtaining extra pay and promotions amounting to $230,000 in lost lifetime earnings, there’s a large enough incentive to do so. Bringing anti-discrimination lawsuits is also costly, and few potential plaintiffs could afford to do so. But many attorneys would be willing to organize classes of plaintiffs to overcome these costs, just as they now do in racial-discrimination and other lawsuits.
Lots of fun semi-serious reactions to this piece around the ‘sphere today. E.g., if ugly people deserve compensation for their lost earning potential, don’t short people (or at least short men) deserve it too? Given that filing a claim would be tantamount to an admission of extreme homeliness, aren’t men much more likely to file than women? Wouldn’t this make hiring people even more burdensome and expensive at a moment when that’s the very last thing we want to do? More:
No one ever seems to think about the workability of such litigation: does a “7” have a prima facie cause of action if he or she is passed over a promotion for a “9”? Is a pleasant appearance a legitimate job requirement for sales, or does an employer have to accept the problem of repulsing customers? Is slovenliness and being unkempt protected, or does the right only extend to aesthetic problems of the face and body?…
Will a defendant in an ugliness trial be allowed to require the plaintiff to get a makeover before presentation to the jury over the question of whether the plaintiff is in the protected class, or can the plaintiff deliberately choose unflattering makeup and clothing? And what do we do with the fact that jurors are more sympathetic to better-looking plaintiffs and attorneys?
I’ll agree to support this scheme only if we skip the ad hoc case-by-case approach and decide up front which one to two percent of the population is so physically repulsive that it amounts to a disability. I want a new federal bureaucracy for the task — the Department of Fug, tasked with playing a game of “hot or not?” with the entire U.S. labor force. If you think the IRS has power, imagine the psychological impact of coming before a DOF agent and having him or her give you a Caligulan thumbs down. Simply devastating. Yet lucrative.