Is Appearance More Than a Book Cover?

Judy Olian

(Judy Olian is Dean of Penn State's Smeal College of Business and a leading expert in strategic human resources management.)

Samantha Robichaud wanted to live the American dream. A 32-year old mother of two, she'd worked for five months at McDonald's in Northport, Alabama and she watched others hired after her promoted to manager. She craved for the same. When the situation continued she asked for an explanation. Her boss admitted that she could never be promoted to manager because she would, "either make the babies cry or scare the customers off".

Robichaud was born with a very bad case of "port wine stain," a dark purple mark covering and distorting a substantial part of her face. Doctors commented that her case was among the worst they had seen, untreatable with traditional laser surgery.

Stunned by the blunt feedback and blamed the next day for bad performance and deteriorating attitude, she quit. She consulted with the Equal Opportunity Commission. After failing to reach settlement with the McDonald's franchisee, the EEOC filed suit.

Robichaud's case raises two critical questions - one ethical, the other legal. Was she the victim of unfairness in the workplace since she was denied promotion based on her looks? Second, is her facial deformity a protected disability under the Americans With Disabilities Act and if so, does the employer's behavior constitute illegal discrimination?

According to the federal ADA, disabilities are protected to the extent that they "substantially limit" a major life activity. As long as disabled individuals are qualified for job performance, the employer can't discriminate for reasons of the disability and must offer reasonable accommodation to enable the person to work. However, disabled individuals can be denied employment if their disability prevents them from performing effectively against the job requirements.

Over the years, the federal courts have become more restrictive in their definition of protected disabilities. In contrast, in February the California Supreme Court offered a more liberal interpretation of the disability standard. The California court defined disability as one that "limits" a major life activity, as opposed to the federal standard of "substantially limits".

In 1992, the Santa Cruz, California, City Council enacted an ordinance that prohibits discrimination on the basis of physical characteristics - bodily conditions or characteristics "from birth, accident, or disease … outside the control of that person including physical mannerisms."

Is Robichaud's appearance a disability, therefore protected under the ADA? Whether it's a large facial birthmark, obesity, or other forms of blemished appearance, do these forms of looking different substantially limit life activities and therefore warrant protection?

Experts doubt that Robichaud's legal arguments will prevail, except if she lived in Santa Cruz. But the more disquieting issues relate to fairness - balancing an individual's right to just returns for doing a good job, against an employer's responsibility to make decisions that achieve financial and organizational benefits. Sure, the easiest solution would be to promote Robichaud to an alternative job where her performance could shine and business interests would not be jeopardized. But what if that option isn't available?

Some years ago Robert Barro, an economist and frequent commentator, noted that discrimination in favor of the beautiful is legitimate. In his view, the most important job outcomes are customer satisfaction and coworker happiness. If beautiful stewardesses, servers, retail professionals or consultants foster greater customer and job satisfaction, they create value in those professions and they should be hired over the rest according to Barro. We favor smarter employees and more effective communicators in many fields because they generate more resources. Those features are determined to a considerable extent by luck, much like appearance, according to Barro. So why should looks be treated differently in business-related decisions?

If we start providing legal protection to those with blemished looks, where will it end? And whose taste should dictate what is permissible discrimination versus the illegal?

However, there is a dark side to these arguments. Allowing customer preferences to dictate the grounds for hiring and promotions can lead quickly down the path of blatant prejudice. There will be some customers who prefer only white, young, attractive, males. That's why we have anti-discrimination laws, regardless of preferences.

Ethically as well as legally, employers cannot act prejudiciously against a person because of color, race, age, national origin or gender. But what about other characteristics that fall outside legal coverage, and make a difference in performance? Employers always make hiring and promotion decisions based on expectations about employee successes in the workplace. They engage in legal discrimination, whether following their own gut feelings or complex prediction models, in order to hire and promote candidates whose features signal to them that they will probably succeed on the job. If the talents and features don't mesh with the job needs, they'll say no to a candidate.

But where's that line between fairness and openness to individuals of all shapes and kinds, and employers' legitimate rights to exercise their business needs? The case of Samantha Robichaud falls right on that line.