Can "ugly" or "unattractive" be a protected class?

Question

If women are systematically underpaid at a company, that's strong grounds for a lawsuit. Same for Blacks, or gays, or older people, etc..

But what about ugly people? If a company systematically discriminates against ugly people (either through not employing them or paying them less), is that grounds for a lawsuit?

Slightly more severely, what if the attractiveness-discrimination was based on sexuality? I.e. recruiters sexually attracted to women were more likely to discriminate against unattractive women, but by the same token, recruiters sexually attracted to men were more likely to discriminate against unattractive men. Technically, the discrimination isn't really sex-based (since it's applied to both sexes), but attractiveness-based.

Assume that the evidence is overwhelmingly substantial (e.g. 200 people apply for the company, 100 of them are hired, and an independent third-party ranked the 200 people based on attractiveness, and the top-100 attractive people turn out to be the ones that were hired). And assume that attractiveness has nothing to do with their job (e.g. it's a tech company). And if absolutely necessary, you can even assume that the recruiters explicitly admit to discriminating based off attractiveness.

Lastly, on a related note, let's say unattractiveness isn't a protected class (which I imagine will be the case). However, disability is a protected class. At some point, can a condition that makes one unattractive be legally construed as a "disability" which protects one from discrimination? For example, a cleft lip, Vitiligo, facial paralysis, a lazy eye, burn scars on ones face, etc..

Answer 1

Attractiveness (or lack thereof) is not a protected class (a.k.a. prohibited ground) in any anti-discrimination regime that I know of. I am certain of this for canada and its provinces, but I believe this is also true throughout the united-states.

Legislatures could make it a prohibited ground of discrimination, but they have not.

However, if deciding based on attractiveness ends up creating a distinction based on sex, gender, disability, or other prohibited ground of discrimination, then that would be prohibited as "adverse effects" or "disparate impact" discrimination.

The Supreme Court of Canada explained, in Fraser v. Canada (Attorney General), 2020 SCC 28:

Courts will also benefit from evidence about the outcomes that the impugned law or policy (or a substantially similar one) has produced in practice. Evidence about the “results of a system” may provide concrete proof that members of protected groups are being disproportionately impacted. This evidence may include statistics, especially if the pool of people adversely affected by a criterion or standard includes both members of a protected group and members of more advantaged groups.

There is no universal measure for what level of statistical disparity is necessary to demonstrate that there is a disproportionate impact, and the Court should not, in my view, craft rigid rules on this issue. The goal of statistical evidence, ultimately, is to establish “a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance”. The weight given to statistics will depend on, among other things, their quality and methodology.

That sort of proxy discrimination is harder to prove but it is still prohibited.

Answer 2

finland

Finland's Non-discrimination Act (official English translation) clause 8 § prohibits discrimination based on various listed characteristics, and in addition "other personal characteristics". This has been interpreted to include attractiveness, for example in reporting by the national broadcasting company YLE.

There haven't been any court cases about discrimination based on attractiveness. In the YLE report above, a sociology researcher argues that explicitly listing it in the law would make the legal situation better defined.

Answer 3

Not directly.

If ugly is a protected class, attractive would be too. Think about race: it is unlawful to discriminate against any race in the US, not just the disadvantaged classes.

In 2013, the Iowa SC upheld a woman's firing from a dental office because she was too sexy. Hence, attractive is not a protected class, and then by my logic above, ugly is not either. The plaintiff tried to argue that being attractive was related to her gender, and thus this would be sex discrimination, but the court ruled that her attractiveness was more rooted in her behaviour. This leaves the possibility in future cases that one's ugliness could be scored on sex, race, etc., and hence an outgrowth of a protected class.

As far as I know, the US SC never took this up.

Indeed, the US EEOC does not enumerate ugliness in its protected classes.

Answer 4

united-kingdom

From section 4 of the Equality Act 2010:

The following characteristics are protected characteristics—

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.

Therefore being ugly is not a protected characteristic.

Answer 5

Yes it is

(I'm open for debate on my interpretation because it is "a bit" of a reach, tbh more of a thought experiment)

From the US Equal Employment Commission: A disability is (and I am assuming the list is an "any of those suffice" instead of an "and"-list) A person is disabled if they

[...] [are] subject to an adverse employment action because of a physical or mental impairment the individual actually has or is perceived to have

That being said (and it's already a far fetched reading), unless they're directly bullied for being ugly, the ADA does not give them recourse against general discrimination (as your lower wage example would constitute), only if they are retaliated for asserting their ADA rights, which (I probably missed more) is only asking for reasonable accomodations. Which could be WFH or not having unnecessary customer contact / other social interactions where their physical state causes hurt.

Below is the answer to the question whether it could be established in the future as an explicitly protected class]

Yes it can (be in the future theoretically, it's not as of right now [probably])

For any reason of "why not" that I could think of, there are already established classes that that reason would also apply to. There already are protected classes that do not yield a perfectly clear line (which is almost impossible IRL anyway). Race-based discrimination is already defined based on perceived race, aka subjective by the discriminator, so an objective, absolute definition is not necessary. Furthermore, there is - as far as I could tell - no (constitutional) restriction of what can be declared protected and what couldn't, so almost anything could be a protected class (assuming it doesn't clash with the constitution, in which case it still can be but requires an amendment to establish the protection).

How the law would actually be written and more so how instances would be provable is an entirely different matter but that would be a challenge, not a blocker.

Of note is that "protected class" is imho a confusing wording for the whole concept. Some bans of discrimination apply to a class of people. Others forbid discriminating based on attributes that always apply to everyone (sexual orientation, race, religion etc.). Everyone has a religious characteristic that could be discriminated against, which would be illegal. Even nonreligious people (well, tbh, especially nonreligious in some parts of the US). Even cis straight people have sexual orientations and gender expressions that could be discriminated on. So talking about classes of people (which is what comes to my mind whenever I read it) is kinda misleading, classes of attributes would be a more fitting description. But this is imho semantics more than anything else.

Tl:dr: We already have subjective, not-clearly-deliminated, temporary and (arguable) arbitrary classes.

(though afaik not a combination of all of them). Beauty would not be extraordinary

It currently is not (as far as I could tell).