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Protecting the Ugly Under the Americans With Disabilities Act

Ugly Let's face it, you're ugly. U-G-L-Y, you ain't go no alibi.

No, not you, LBW readers! You are all obviously of above-average attractiveness. I'm talking about those other people over there, the ugly ones who earn less money, marry lower-earning spouses, get offered worse deals on mortgages, and basically get hosed throughout life to the tune of about $230,000 in lost lifetime earnings according to some studies.

In The New York Times last weekend, Daniel S. Hamermesh, a professor of economics at the University of Texas, Austin, argues that it may be time for federal law to protect the ugly in the same way that it protects racial, ethnic and religious minorities, women and handicapped individuals. Hamermesh writes that:

Ugliness could be protected generally in the United States by small extensions of the Americans With Disabilities Act. Ugly people could be allowed to seek help from the Equal Employment Opportunity Commission and other agencies in overcoming the effects of discrimination. We could even have affirmative-action programs for the ugly.

Hamermesh already knows what you are thinking -- isn't beauty is in the eye of the beholder? How can we identify the truly ugly? He responds that studies show that "when it comes to differentiating classes of attractiveness, we all view beauty similarly: someone whom you consider good-looking will be viewed similarly by most others; someone you consider ugly will be viewed as ugly by most others." Hamermesh says that to administer an ADA tweaked to protect the ugly, society would simply need to agree on who is "truly ugly, perhaps the worst-looking 1 or 2 percent of the population." Doing so, he says, should not be much more difficult than deciding who currently qualifies for protection under the ADA for having a disability that limits the activities of their daily life.

Over at Point of Law, Ted Frank is not persuaded of the wisdom of this idea. At all. Frank calls the proposal "nonsense" and "public policy malpractice" that he might expect from a law professor or a sociologist, but not an economist:

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?

Frank also wants to know if a defendant charged with ugliness discrimination can demand that the plaintiff get a pre-trial "makeover" and whether the plaintiff can come to trial deliberately looking extra-ugly via unflattering makeup and clothing.

Posted by Bruce Carton on August 30, 2011 at 04:50 PM | Permalink | Comments (11)


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