Confronting the Ugliness of Appearance-Based Discrimination: DePauw University and the Delta Zeta Sorority Purge


Wednesday, Mar. 21, 2007

Last week, DePauw University in Indiana cut off ties with Delta Zeta, a national sorority that had, in December, evicted twenty-three members of the DePauw chapter in what was widely viewed as a purge of the unattractive.

Delta Zeta denies that its decision rested on factors other than each woman's commitment to the sorority's recruitment efforts. But DePauw President Robert G. Bottom was apparently unconvinced and wrote a letter indicating that the sorority, beginning in the fall, would no longer be offered housing in the university's Greek-columned residence. Delta Zeta's values, he said, are incompatible with those of the university.

The case of Delta Zeta highlights a deeply-entrenched yet largely-ignored form of discrimination: negative treatment on the basis of looks.

Appearance Discrimination: Unimportant?

Some reports about the Delta Zeta purge indicate that members of minority groups were among those evicted from the sorority. For example, one New York Times article on the subject said that "[t]he action greatly diminished the chapter's diversity" - that is, the number of members belonging to racial or ethnic minorities.

The story of appearance discrimination is not, however, primarily a story about race or ethnicity. Reporters' felt need to mention race in describing the incident is revealing: It suggests a belief that if women were evicted from a sorority just because they were not pretty enough, then the eviction might not be so offensive.

In some respects, appearance-based discrimination - or what I will call "lookism" - might at first glance seem much less invidious than other (legally regulated) forms of discrimination For one thing, it is hidden and ordinarily goes unstated, perhaps because those who practice it are ashamed. Delta Zeta, for instance, denied that it relied on appearance in its membership decisions.

In contrast, the long history of race and sex discrimination has been one of explicit and legally-mandated forms of disadvantage associated with race (most notably slavery and Jim Crow segregation) and sex (including the protection of men's legal dominion over their wives that itself shared - and in some countries, continues to share - many attributes of chattel slavery).

If people, at least publicly, deny that they are "lookists," then this at least seems to suggest an understanding that appearance discrimination is wrong and even embarrassing to its practitioners. That is a healthy sign, isn't it?

Not necessarily. Denial can exist side by side with devaluation of the group claiming an injustice - the same kind of devaluation that characterizes the words of avowed discriminators. For good or ill, human beings generally feel compelled to erect elaborate moral justifications for their actions, even when those actions are objectively indefensible. When race and sex discrimination were legal (and even legally required) in this country, for example, its practitioners did not own up to indulging irrational prejudices. Quite to the contrary, they devoted great energy to "demonstrating" white supremacy through scientific endeavor (called "scientific racism" in modern study) and to theorizing from first principles about the alleged innate physical and mental weakness of women.

Rationalizations for Appearance Discrimination

In the case of lookism, people rarely acknowledge publicly that they have an irrational aversion to unattractive or overweight people. They rely instead on a combination of denial, generalization (of the sort that have animated racial and sexual supremacy theories), and assertions about the supposed relevance of appearance to the workplace and other venues.

Denial is part of the problem - as exemplified by Delta Zeta's claim that its purge was not in any way motivated by the relative prettiness of its members. And as is true for the disease of alcoholism, denial precludes recovery here, because to address a problem, it is necessary first to acknowledge that there is a problem to be addressed.

Often alongside denial, and closely related to it, is the generalizing claim of justification. An employer might say, for example, that if a person cannot avoid obesity or otherwise take care of her appearance, then she is probably not going to be very responsible in performing her job. To my knowledge, however, no evidence supports this conclusion: in fact, studies have increasingly suggested that obesity results from genetic and hormonal traits rather than sloth. And one hardly needs a study to prove that people are not ultimately responsible for how pretty they are.

Finally, some argue that appearance is itself a bona fide occupational qualification, because clients and customers prefer to look at a pretty face than at an ugly one. But this move is question-begging.

When people have not yet formed a bond of collegiality, friendship, or love with another person, they do seem to prefer looking at attractive people if given a choice. The very word "attractive" reflects this preference. Indeed, alarmingly, at least one study suggests that parents treat their attractive children with greater love and care than they do their less attractive ones. Though people speak of a face that "only a mother could love," such a study calls even that foundational premise of unconditional love into doubt. The fact that people enjoy being around pretty faces, however, does not make looks a "relevant" job characteristic. It demonstrates instead people's willingness to allow their tastes to trump other considerations. A word-processor's weight, for example, has no bearing on her ability to do her job, yet it might nonetheless affect her job prospects.

These observations also hold true outside the employment context. If one's membership in a community is supposed to be about forming alliances among women to support each other's social and academic endeavors - the ostensible objective of sororities - then looks should not matter to that endeavor.

The Prejudice that Gags its Victims: Why A Legal Ban Might Not Work

Existing laws prohibiting discrimination generally do not include unattractive appearance among the prohibited bases. A legal reform providing for such inclusion, however, might not be the answer.

Unlike in the case of race or sex discrimination, a person who is subjected to appearance-based prejudice might well find humiliating the very idea of coming forward to identify herself as "ugly" or "overweight" as a predicate for making a claim. As in the case of rape victims, the identity that one embraces in leveling such an accusation - that of a rape victim or that of an "ugly" person - is itself stigmatized. Due to the stigma, rape victims may not want anyone to know that they were raped, and "ugly" people may not want anyone to know that they conceive of themselves (or were conceived of by others) in such terms.

To give a concrete illustration, suppose a friend or protégé said, "I think I might have been fired because I am ugly." In most people's view, the supportive response would be, "No. You are not ugly, so that cannot be the reason."

By contrast, one would not be inclined to comfort a friend claiming to have been the victim of anti-black racism by saying, "I don't think that is what happened, because in my view, you are actually white." People embrace their identities as African-Americans and as women, but that is far less true in the case of the unattractive.

What Should We Do About Appearance Discrimination?

Victims' likely reluctance to lodge formal complaints about appearance-based discrimination makes a conventional legal ban unlikely to work. Fellow FindLaw columnist and blogger Michael Dorf has proposed an interesting alternative legal framework. He says that the remedy for looks-based discrimination might be publicity and shaming. That is, the law could prohibit covert appearance discrimination and require that an accused defendant either own up to discriminating on the basis of looks or defend the lawsuit on the merits. This is potentially promising. However, any path that includes lawsuits would still require plaintiffs to identify themselves publicly as "ugly" or "obese."

As a variant on the Dorf proposal, I suggest something similar to the Brown "date rape" list of 1990 that received so much critical attention at the time. At Brown University in 1990, a time when date rape was rarely prosecuted, victims of the crime turned to a self-help remedy: They began writing the names of their assailants on the wall of one (and then several) women's restrooms on campus. As a result of such postings - which Brown staff repeatedly washed away, only to have them reappear - other women knew to beware of the listed men.

As an alternative to lawsuits, I propose a hi-tech analogue to the Brown restroom list: a web-based information exchange at which people could use pseudonyms to register complaints of appearance-based discrimination against workplaces and other organizations.

There are, of course, dangers entailed in such a program, a version of which operates currently in conjunction with some web-based dating services. Accusations in the absence of investigation can be false with little cost to the accuser, who may simply despise a particular person or entity and find an anonymous posting the easiest way to destroy him or it. But numerous remarks about an entity from different persons might tend to corroborate one another. Thus, if the postings mount, people could properly take note and act on that basis. Falsely-accused entities, moreover, could make efforts to respond to unwarranted accusations.

Each person typically occupies two types of roles in the marketplace - that of consumer and that of "product." In the first of these roles, we ordinarily buy things and hire people. In the second, we occupy a more passive space - that of wage laborer or salaried employee whom someone else hires (or refuses to hire). It may be time for those suffering from appearance-based discrimination to begin fighting back in their role as a "job consumer" rather than as a scorned product, much as wage-earners do when they form unions and make demands of their employers.

By publicizing their own experiences of appearance-based prejudice and initiating the creation of a public record of complaints against practitioners of such misconduct, victims of appearance-based discrimination can have an impact by persuading other "job consumers" to look elsewhere. If people start avoiding places known to discriminate on the basis of appearance, then such places may ultimately have the necessary economic incentive to terminate their destructive practices.

The case of the Delta Zeta sorority is instructive. As noted above, it recently received negative publicity in the New York Times, and the president of DePauw University subsequently terminated its housing privileges. Note that the president's reaction occurred in March (after news reports surfaced), though the purge itself took place back in December of 2006.

In sum, "sunshine" that exposes the ugliness of appearance-based discrimination may be the most effective antiseptic available.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, will be published by Rowman & Littlefield in March/April 2007

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