Is It Illegal to Discriminate Against an Employee for Being Too Cute?
When an employer bases an adverse employment decision on the perception that a female employee is “too cute,” has the employer illegally discriminated against the employee? Under the circumstances that Dilek Edwards alleged in her discrimination complaint, a New York trial court judge concluded that firing a woman because she is cute does not constitute gender discrimination.
Allegations of Sex Discrimination
Dilek Edwards worked for a Wall Street chiropractic clinic that former Playboy model Stephanie Adams owns with her husband, Charles Nicolai. Edwards is a yoga teacher who was employed to provide yoga-therapy to help the clinic’s patients achieve pain relief.
According to Edwards, Nicolai warned her that his wife might become jealous of her because she was “too cute.” Adams later sent a text to Edwards, advising her that she was no longer welcome at the clinic and telling her to stay away from her husband. The next day, Nicolai sent a text to Edwards telling her that she was fired.
Edwards maintains that her relationship with Nicolai was entirely professional. While Edwards denies engaging in inappropriate behavior, she told the New York Post that she gave Nicolai some yoga therapy sessions and kept them a secret from Adams at Nicolai’s request.
Adams denied that she had any reason to be jealous of Edwards. “No disrespect to anyone — but I’m a centerfold,” she said.
Edwards sued Adams and Nicolai, alleging that they violated the New York State Human Rights Law by engaging in gender discrimination. Although her complaint also alleged that she was subjected to sexual harassment and to a hostile work environment because of her sex, she later abandoned those claims.
The complaint alleged that Nicolai informed Edwards that his wife might become jealous of her because she was too cute. The court decided that basing an employment termination on jealousy is not sex discrimination. The court reasoned that the termination is not related to the employee’s gender but to employer’s perception that the employee is a threat to the employer’s marital relationship.
The court cited several out-of-state cases in support of its reasoning. Other cases, however, suggest that jealousy may be a basis for a sex discrimination claim. For example, if Adams was jealous of Edwards solely because she was too cute, but would not have been jealous of an equally cute male employee, an argument could be made that the termination was motivated by gender-based jealousy.
That argument is strengthened in this case because Edwards contends that she did nothing to provoke Adams’ jealousy. In the cases upon which the court relied, the fired employee had engaged in flirtatious conduct that would have given the employer a reason to fear that her marriage was threatened. In this case, Edwards claims that she was fired only because she was too cute. Unless Adams would also have fired a cute male who engaged in similar nonthreatening behavior, one view of the law would suggest that Edwards was the victim of sex discrimination.
The trial court recognized that possibility but noted that Edwards did not allege in her complaint that she was treated differently than male employees. The court also noted the absence of evidence that Adams and Nicolai had any other employees. If, in fact, the chiropractic business never had a male employee, it would be difficult for Edwards to prove that she was treated less favorably than male employees. Perhaps evidence of gender discrimination could have been unearthed in discovery by asking Adams if she would have fired a male employee for being too cute, but the case did not proceed to the discovery stage. Instead, the trial court found that Edwards’ failure to allege that she was fired because she was a woman was fatal to her lawsuit.
A trial court’s ruling is not precedential, and it is possible that the ruling will be overturned on appeal. In any event, the case turns on a set of narrow facts that limit its application to other cases. Most employers have a mix of male and female employees. In those work settings, discriminating against women but not men because they are “cute” might well be viewed as sex discrimination. In fact, a California appellate court came to that conclusion when it decided that firing a salesperson because she wasn’t sufficiently “hot” constituted sex discrimination because the same standard of physical appearance was not applied to male sales employees.
Appearance-based Discrimination laws
The New York Human Rights Law defines gender as including “a person’s gender identity, self-image, appearance, behavior or expression.” Edwards argued that firing her because of her appearance constituted a termination based on her gender, given the New York law’s definition of gender.
The court disagreed. Read in the context of the definition, the court concluded that “appearance” refers to gender identity, and that the law is meant to protect transsexuals or others who design their appearance in a way that allows them to identify with a particular gender. The court cited New York cases that refused to find sex discrimination based on general aspects of appearance (such as obesity) in the absence of evidence that appearance standards are applied only to one gender but not the other.
A few states and communities prohibit discrimination on the basis of appearance. The District of Columbia and the City of Urbana, Illinois make it unlawful to discriminate on the basis of “personal appearance.” An ordinance in Madison, Wisconsin addresses “physical appearance” discrimination (including questions of style, like dying hair blue), while Santa Cruz, California forbids discrimination based on “physical characteristics” (those that are not a matter of choice). A more limited law in Michigan prohibits discrimination based on height and weight. Many of the laws allow exceptions when taking appearance into account serves a reasonable job-related purpose.
Some legal commentators believe it is likely that physical appearance will be the next category protected by discrimination laws. Others are doubtful that any such trend will develop. Some occupations (like modeling) depend on good looks or a pleasing figure, and some high-end retailers (like Abercrombie & Fitch) make it a point to “brand” their stores with attractive employees. Whether proposed laws prohibiting physical appearance discrimination should accommodate or outlaw those practices is a hotly disputed policy question. For now, the burden of being “too cute” will not support a discrimination claim in New York, at least under the circumstances alleged by Dilek Edwards.