Is it legal to hire only beautiful people?

Question

Josephine Fairley wrote a column in the Telegraph claims that it is perfectly legal to hire only beautiful people.

But while it's illegal to discriminate on the grounds of gender, sex, race, religion, age or disability, there's nothing on the statute book that says an employer can't be looksist. Politically incorrect, yes. But illegal? Uh-uh.

I am skeptical.

Isn't it illegal to discriminate on the basis of sex or age? I know there are exceptions for actors but the article isn't about movies.

The idea of Bona fide occupational qualifications is very relevant. For example, in Northumberland Country Council's Genuine Occupational Qualifications: General Guidance with respect to the UK situation (GOQ is Genuine Occupational Qualification):

GOQs are interpreted very narrowly by the courts since it is a derogation from the principle of equal treatment, and can only be claimed where the work:

• is restricted to one sex for reasons of physiology or authenticity in dramatic performance or other entertainment
• is restricted to one sex to preserve privacy and decency
• is in a private home and would lead to physical or social contact with or knowledge of intimate details of someone living there
• requires living in single sex accommodation
• is in a single sex establishment requires the promotion of personal welfare or educational services
• is outside the UK
• requires the employment of married couples.

There are some exceptions, such as modelling. This essay on European law explains:

One obvious example would be authenticity in relation to acting, modelling and other occupations where appearance is important. In Commission v Germany the ECJ noted that the laws and practices of Member States were similar with regard to exemptions relating to singing, acting, dancing and artistic or fashion modelling.

It is worth reading on in that document too.

Answer 1

Using "illegal" in the casual was that Josephine Fairley intends it (see below for more on this), the answer is:

In some European Countries: Yes, it is "illegal".

In all EU Countries: It is highly likely to be "illegal".

Specific countries

In France, Article L1132-1 of the Code du Travail ("the labour code") prohibits discrimination in employment (including recruitment) by reason of the prospective employee's physical appearance "de son apparence physique".

There are circumstances when an employer may justify discrimination on grounds of physical appearance, but that is also true of all the other grounds of prohibited discrimination, so it is "illegal" to discriminate on the grounds of physical appearance (including attractiveness) in France in the same sense that it is "illegal to discriminate on the grounds of gender".

For the rest of this answer I will ignore the possibility of justification. I am treating Josephine Fairley's claim as meaning "it will be at first sight unlawful..." subject to justification, rather than that it will always be unlawful, because that would not be true of discrimination on grounds of gender etc either.

Some systems of anti-discrimination law have a fixed list of "protected characteristics". French law is such a system, which happens to include "physical appearance". Belgium is similar, prohibiting discrimination on the grounds of physical characteristics.

For reference, a table of EU countries' list of such protected characteristics is found on pages 12-13 of Developing anti-Discrimination Law in Europe (European Commission, DG Justice, October 2013).

From that list it will be clear that some jurisdictions have an open-ended list. For example Germany which prohibits discrimination for a number of reasons including "... or any other ground". Such an open-ended list may be interpreted by the country's courts as prohibiting discrimination on the grounds of attractiveness. I am not able to read German, so I am not familiar with German law on this point - given that the question asks about law in Europe in general, I won't try to research it. The OP can always ask elsewhere if they wish to know more.

Europe in general

Directive 2000/78/EC ("the Employment Equality Framework Directive" sometimes known as just the "Framework Directive") requires EU Member States to prohibit discrimination on certain specific grounds (religion, belief, disability, age or sexual orientation, see Article 1). These grounds, along with race or ethnic origin (protected by Directive 2000/43/EC) and sex (protected, now, by Directive 2006/54) are a minimum level of protection required of all Member States, which is why France and Belgium are able to expressly protect additional characteristics.

All three directives prohibit indirect as well as direct discrimination, defined to mean a situation where an apparently neutral provision (i.e. on that is not directly discriminatory) puts someone at a "particular disadvantage" because, for example, of their sex, age or race. Indirect discrimination may also be justified in certain circumstances.

The problem for an employer of being "lookist" is that almost any criterion of attractiveness will inevitably put some people at a particular disadvantage because of one of the protected characteristics, particularly age and disability, but also race, sex etc.

For example, most (though not all) ways of assessing physical beauty will treat more young people as being "beautiful" than older people. I am not saying (as one commenter complains) that only young people are beautiful, but that an older person is more likely to be disadvantaged in a comparison of physical beauty. Similar remarks apply to disability (especially where the disabled person is obese) and race.

UK Solicitors Shoosmiths (riffing off a reference to Abercrombie & Fitch being investigated in France for their attractiveness policy) discuss just this problem from the point of view of British discrimination law. Their view is that it is very risky for an employer to try to discriminate on grounds of attractiveness.

An example of the kind of mess you can get yourself is the English Employment Tribunal victory of a girl discriminated against by Abercrombie & Fitch because she had a prosthetic arm. Note that this case does not set a precedent (it is a first tier case) and that it is about discrimination in employment rather than refusal to hire, but I think it makes the point neatly.

My own view, which probably does not carry much weight on Skeptics but is based on having quite a bit of experience in British discrimination law and having fought many cases, is that it will be rare for it to be safe to discriminate on the grounds of attractiveness without an "objective justification" such a justification would have to be proportionate.

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On the meaning of the word "illegal"

Being pedantic, the term "illegal" is usually used by lawyers to refer to an action which has a criminal sanction. It is illegal to steal. Some jurisdictions do make discrimination illegal (for example the French penal code makes discriminating on grounds of physical characteristics in the supply of goods and services a criminal offence).

However, in most cases employment discrimination is not a crime. For example, in England and Wales, employment discrimination is a civil wrong (technically known as a "tort"). The discriminated party may be able to sue for damages for discrimination, but the discriminator does not face criminal prosecution. This is the reason for the scare quotes around the word "illegal".

A second layer of pedantry, which I have alluded to above but which has been pressed in comments, is that "it's illegal to discriminate on the grounds of gender" is not true in general. There are circumstances when gender (or as the UK legislation puts it "sex") discrimination in employment may be permitted, namely when the discriminator can prove that it is an occupational requirement and a proportionate means of achieving a legitimate aim.

In other words, if the employee can show (and in Great Britain there are rules on the reversal of the burden of proof at an early stage) that there has been discrimination, the employer must justify it. I am using "illegal" to mean essentially this: if you do this, you must be able to prove that you are justified (in the sense I have explained) or you will be committing a wrong (a tort or delict or however the particular system of law classifies it).

This isn't quite the same thing as walking out of a shop with items being "illegal" unless you bought them - that is a more complex situation involving the law of theft as well as rules on personal property ownership. I won't get into that here.

I think it is reasonable to test Josephine Fairley's claim using the same notion of "illegal" as she does.

Answer 2

It is not specifically illegal at all, but there are very specific limits that need to be taken into account.

In Europe

There are some specific characteristics which are protected. See the EU directive on work discrimination, which covers only:

• Race or ethnic origin,
• Sex
• Pregnancy
• Sexual orientation
• Religion or belief
• Disability (physical or mental, including HIV status)
• Age

In UK

Which grounds of discrimination are explicitly prohibited in national law? All grounds covered by national law should be listed, including those not covered by the Directives.

Discrimination is explicitly prohibited under British legislation in relation to what are now categorised as “protected characteristics” by the Equality Act 2010: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity and “race” (including colour, nationality and ethnic or national origins), religion or belief, sex and sexual orientation

report from European network of legal experts in gender equality and non-discrimination

Exceptions

These protected characteristics have sensible exceptions: for example, if you are hiring for a religious congregation, you can discriminate on religion. If you are hiring for a mining job you can discriminate for some disability, etc.

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
(2) If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.
(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.
(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.
(5) If the protected characteristic is race, less favourable treatment includes segregating B from others…

report from European network of legal experts in gender equality and non-discrimination

Indirect discrimination

Discriminating on physical appearance can result in a discrimination against age, gender, disability or other protected characteristics. This is called indirect discrimination:

Indirect discrimination is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The Equality Act says it puts you at a particular disadvantage.

Citizens Advice Bureau

Whether the discrimination is direct or not, it's still considered discriminatory by the Equality Act 2010 (in UK). Of course, the same disclaimers for direct discrimination apply do indirect discrimination:

Indirect discrimination can sometimes be lawful. The Equality Act says it’s not indirect discrimination if the person applying the practice, policy or rule, can show there’s a good enough reason for it. They would need to be able to prove this in court, if necessary. This is known in legal terms as objective justification.

Other countries

See Francis Davey's answer for France and nomen agentis's answer for the US.

Conclusion

Discriminating against physical appearance is not specifically illegal. It is only illegal (in UK) if:

• it actually results in a discrimination against a protected characteristic (gender, age, etc...)
• such discrimination does not have an "objective justification".

Answer 3

Can employers make hiring decisions on the basis of attractiveness?

In the United States, discrimination by non-government employers is constrained by statute.

Statutes

Age Discrimination in Employment Act

The Age Discrimination in Employment Act is implemented in 29 U.S.C. § 621-634. It prohibits "arbitrary age limits". It applies to employers who have at least twenty employees (§630), and only prohibits discrimination against people at least forty years old (§631). This act doesn't prohibit differentiation "where the differentiation is based on reasonable factors other than age" (§623). There is no case law that uses this act to prohibit discrimination based on attractiveness via its disparate impact on an age group.

Civil Rights Act

Title VII of the Civil rights act is implemented in 42 U.S.C. Chapter 21. It applies to employers who have more than fifteen employees (§2000e). It prohibits the "fail[ure] or refus[al] to hire [...] because of an individual's [...] sex..." (§2000e-2) unless sex is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise" (§2000e-2). There is also a "business necessity" defence in disparate impact cases (§2000e-2).

Example case

Wilson v. Southwest Airlines

The question was "whether femininity, or more accurately female sex appeal, is a bona fide occupational qualification ("BFOQ") for the jobs of flight attendant and ticket agent with Southwest Airlines".

Whether sex is a BFOQ is a very fact-intensive analysis and "depends, in large part, upon an analysis of the employer's particular business".

The court ruled against Southwest, finding that:

Southwest's particular operations results in the conclusion that being female is not a qualification required to perform successfully the jobs of flight attendant and ticket agent with Southwest. Like any other airline, Southwest's primary function is to transport passengers safely and quickly from one point to another.

and that

the ability of the airline to perform its primary business function, the transportation of passengers, would not be jeopardized by hiring males.

As to whether female attractiveness could be considered part of the primary business function,

That Southwest's female personnel may perform their mechanical duties "with love" does not change the result. "Love" is the manner of job performance, not the job performed.

[...]

Southwest's argument that its primary function is "to make a profit," not to transport passengers, must be rejected. Without doubt the goal of every business is to make a profit.

[...]

[S]ex does not become a BFOQ merely because an employer chooses to exploit female sexuality as a marketing tool or to better ensure profitability.

Discussion

Employers with fewer than fifteen employees can discriminate based on sex and age, and therefore, attractiveness.

For employers covered by the Age Discrimination in Employment Act (at least twenty employees) or the Civil Rights Act (at least fifteen employees), hiring based on attractiveness such that it results in a sex or age discrimination would require evidence of a BFOQ or a business necessity.

Such a showing isn't impossible. However, simply stating that the the goal wasn't sex or age discrimination, but rather, attractiveness discrimination, doesn't protect against a disparate impact claim. The employer would have to demonstrate that "sexual entertainment is the primary product or service of a business", which is challenging (Manley, K. The BFOQ Defense. Duke Journal of Gender Law & Policy. 2009.).

Regarding the Hooters hypothetical that has come up in other answers and comments, (Manley, 2009) argues that "[i]f taken to court, it is unlikely that Hooters could successfully defend its hiring practices based upon the BFOQ, considering that its primary business is not the selling of sexual entertainment" because "[w]hile the female servers may be preferred by the majority of customers and thus increase business, Hooters primary business is the serving of food and beverages to customers, not the serving of sex appeal", similar to the Southwest flight attendants. (What Hooters' primary business is is a question of fact that would be determined at trial.) "Even if a company uses sex to market services or products, that alone is not enough to permit a BFOQ defense" (Manley, 2009). To allow a BFOQ defence based on an employer's desired manner or means of achieving its primary business purpose would render the statute inoperative, and the BFOQ exception would "swallow the rule" (Phillips v. Martin Marietta 400 U.S. 542 (1971)).