If You Hire Only People You Have The Hots For, Is That Sex Discrimination?

by Constangy, Brooks, Smith & Prophete, LLP

It's a well-known fact that good-looking people have a better chance of being hired and promoted, and make more money, than less good-looking people. At least, as long as you're not too hot. Generally, there isn't much you can do about it if your opportunities are limited by male pattern baldness, that extra 25 pounds you've been meaning to lose, your acne scars from high school, or your thick glasses.

Combover_patent.jpgUnfortunately, the combover usually only makes things worse for the victim of appearance discrimination.


But, what if you are less attractive because you're the "wrong" sex? Is that a horse of a different color?

Interesting little decision from a federal magistrate judge in Savannah, Georgia, last week.

A district attorney (male) was allegedly attracted to men. He had been sued once already by a guy who claimed that the DA had sexually harassed him and retaliated against him. (The guy's lawsuit was eventually dismissed because he didn't notify the court of his mailing address.)

The same lawyer who had once represented the guy then took on a group of female plaintiffs, who claimed that they were not hired by the DA because he wanted only this hot male working for him. In other words, they claimed sex discrimination. During the course of discovery, the women tried to get the DA to declare his sexual orientation. The DA refused, so the women filed a motion to compel.

(A motion to compel is essentially a request that the court order a party to provide information or documents that are relevant to the lawsuit.)


"Her? She's UGLY!"

The magistrate denied the motion, on the ground that the women had failed to state a valid claim of sex discrimination. In so many words, he said that even if everything the women said was true -- that the DA was gay and hired the guy only because he was hot -- they would still lose their case because the law doesn't recognize this type of claim.

My initial reaction to this decision was, This magistrate is crazy. But it's clear that the magistrate did his homework and that my gut was wrong.

Here's the deal, assuming for the sake of argument that everything the women said was true (and realizing that it may not be):

The DA did not prefer all men to all women. He preferred the one guy to everyone else. He didn't even interview anyone else for the job. The magistrate said that this is mere "sexual favoritism," which is not illegal. That's why the bald guy weighing 25 pounds more than he should can't usually claim discrimination when he loses out to Peter Adonis (sorry -- all the links were either uninformative or objectionable, but you can probably get the idea from his name), and why Anderson Cooper and Megyn Kelly can legally beat out . . . uh . . . well, can you identify any ugly TV news person? Of course you can't. The average-looking journalists all work on newspapers, in radio, or are bloggers. This is why Kennedy beat Nixon in the debates.

RichardNixon.jpgA face for blogging.

Yeah, the women said, but he wanted to hire the hot guy so he could hit on him, which is sexual harassment. Doesn't that give us a claim?

Well, no, the magistrate said. There are valid legal claims when a boss gives preference to those who "grant sexual favors," and some lose out because they refuse to do likewise. But in this case, the women weren't saying they were rejected for refusing to grant sexual favors. According to their own lawsuit, they were rejected only because the DA hired this guy he hoped to hit on, who just happened to be a subset of the male population.

In other words, the magistrate reasoned, this is more like giving preference to your girlfriend or boyfriend, or your son-in-law, or your grandma. Unfair, maybe, but completely legal.

And because the women didn't have a case to begin with, the magistrate said, they couldn't compel the DA to disclose his sexual orientation.

This decision aside, women might be able to claim sex discrimination if a male hirer more systematically considered only people he found attractive, all of whom happened to be male. Or the other way around.

Usually, when employers discriminate in favor of the beautiful, they favor all beautiful people, so it's nothing more than "looks" discrimination, which is legal in most jurisdictions.* In the few cases where the employer's idea of beauty is based on race, national origin, or lack of a disability, the rejected individuals have valid discrimination claims. The same principle should apply if members of either sex are systematically excluded from consideration.

*Most, but not all.

But in this case, there was only a single alleged instance of attraction, which is much more akin to old-fashioned favoritism.

Anyway, there you have it. (And, of course, favoritism is never a good idea, whether it's legal or not.)

Photo credits: Wikimedia Commons.


Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.