If you hire only people you have the hots for, is that sex discrimination?

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.

Unfortunately, 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.

A 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.)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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