An opinion piece by University of Texas economics professor Daniel Hamermesh makes a novel argument that, because studies show that “ugly” people are paid less and receive lower benefits, the Americans With Disabilities Act (ADA) should extend protection to them in the same way of workers protected from discrimination for conventional physical disabilities like blindness. This would lead to a new term “ADA Ugly” to replace “coyote ugly.” Yet, it might be a bit premature to cancel that botox and cosmetic surgery.
The ADA prohibits covered employers from discriminating against disabled individuals, 42 U.S.C. § 12112(a) (2006), and an individual is disabled if he has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2) (2006). A plaintiff must show (1) that he is disabled within the meaning of the ADA, (2) that he is otherwise qualified for the job, with or without reasonable accommodations, and (3) that he was subjected to an adverse employment decision as a result of discrimination.
Hamermesh notes that more attractive people not only receive higher pay and better mortgage rates but higher-earning spouses. One study shows American workers in the bottom seventh in terms of looks earn about $230,000 less in a lifetime than similar workers in the top third of looks. This leads Hamermesh to write:
A more radical solution may be needed: why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?
The only problem is that it would be entirely unworkable and extend the ADA to the point that it would make a significant percentage of Americans legally disabled. Indeed, depending how deep you go on the attractiveness scale, we could be a majority disabled country when all recognized disabilities are considered from mental illness to physical disabilities are considered. If a lack of attractiveness is “a physical impairment that substantially limits one or more of the major life activities of such individual,” 42 U.S.C. § 12102(2) (2006), I expect many people could name life activities denied by their looks. This includes the arbitrary denial of my repeated applications as a Chippendale dancer.
Yet, Hamermesh insists:
For purposes of administering a law, we surely could agree on who is truly ugly, perhaps the worst-looking 1 or 2 percent of the population. The difficulties in classification are little greater than those faced in deciding who qualifies for protection on grounds of disabilities that limit the activities of daily life, as shown by conflicting decisions in numerous legal cases involving obesity.
I am not sure that “we surely could agree on who is truly ugly.” I would be particularly interested in how that standard would be codified or put into an objective regulatory system. I am afraid that this is an eye that would have been best left in the faculty lounge for fund debates over a good port. If nothing else, an evening of drinking would show that ideas like people look better with alcohol than they do the following morning.
Source: NY Timesas first read in the ABA Journal