‘Hotness Discrimination’ Isn’t a Superficial Problem for Employers

Stephanie Marschke would have a more routine sexual discrimination case against her former employer, a provider of cardiac monitoring services, if she had alleged she was treated unfairly because she was not attractive enough. The lawsuit she filed in January alleges something quite unusual and, even, counterintuitive: Her boss at Cardio Options Inc. of Jacksonville, Florida, subjected her to discrimination because she was too good-looking.

Marschke claims Cardio Options president Jack Boyd made “stereotypical comments” and “discriminatory statements” to her while she worked for him as a sales representative. Among other things, he allegedly said, “You are attractive, but should dye your hair brown to look smarter,” and “Women don’t like you because of your looks.” After she objected to his comments, the lawsuit says, Boyd fired her.

“Boyd said he was terminating plaintiff because she was ‘too pretty’ and not being taken seriously,” Marschke in her lawsuit, which was filed Jan. 11 in a Hillsborough County (Florida) Circuit Court. “He said that next time he would hire a man.”

Cardio Options has said Marschke was fired for poor performance. But she could still recover damages if she can show she was fired in retaliation for complaining to Boyd.

Marschke is not alone in filing what has been dubbed as a “hotness discrimination” lawsuit. In November 2010, another Florida woman, Amy-Erin Blakely, sued her former supervisors at a not-for-profit for telling her she was too “too sensual” and that her large breasts were “too distracting.”

Blakely’s high-profile lawyer, Gloria Allred, also represented Debrahlee Lorenzana, a former Citibank employee in New York who sued the company in 2009 after supervisors allegedly told her to refrain from wearing form-fitting clothing because it was “too distracting” for male colleagues.

Allred also announced in May that she had filed an Equal Employment Opportunity Commission complaint on behalf of Lauren Odes, a New Jersey woman who alleges her male employers at a lingerie wholesaler fired her for being too attractive and dressing too provocatively. A supervisor allegedly told her that she was “just too hot for this office. Maybe you should wear your boyfriend’s T-shirt and sweat pants.”

Such discrimination claims may seem frivolous, but legal experts say employers should take them as seriously as they would any harassment complaint. “It’s not so much the complaint itself that gets you into trouble; it’s the retaliation,” says Jack Tuckner, a plaintiffs’ lawyer with the firm Tuckner, Sipser, Weinstock & Sipser in New York.

“If an employee makes a complaint that indicates a civil rights issue and they’re run out on a rail, any employment [plaintiffs’] lawyer is going to be able to make a case,” he adds.

According to the New York Employment Lawyer Blog, hotness discrimination “epitomizes one of the greater issues in today’s office culture: the tension between one’s business performance and one’s physical attributes that cannot be controlled.”

In what may have been the first case of its kind, a jury in 2005 found Harvard University did not discriminate against a librarian who said her supervisor told her “she was seen merely as a pretty girl who wore sexy outfits.” Harvard argued that the supervisor’s comments were “innocuous” and did not constitute sexual harassment.

Tuckner’s firm initially represented Lorenzana before Allred took over her case. Lorenzana alleged that when she complained to Citibank management, pointing out that other female workers wore similar attire, she was told that their “general unattractiveness rendered moot their sartorial choices.” In retaliation for her complaints, she said, management transferred her to another branch and ultimately fired her.

The case was referred to a private judge under the arbitration clause in Lorenzana’s contract. “Don’t pull the trigger on an adverse” employment action, Tuckner advises managers who receive a hotness discrimination complaint. “Nonreactivity is the key … What you should do is figure out a way to get out of [the situation] without bloodshed.”

For her part, Blakely was fired from her job at the Devereux Foundation a day after she filed her second internal grievance about harassment that allegedly included being called a “slut” and a “whore” by a senior manager. Her supervisor, she said, told her that, “You should wear loose-fitting clothes or try to hide your breasts because they are too distracting.” Court records indicate that the case was settled last year.

It’s still too early to say how Marschke’s case will turn out. Boyd has denied advising her to dye her hair, that “Males need to be your target audience” or making any other stereotypical comment. His lawyer, William Cooper, a partner in the law firm Cooper, Ridge & Safi in Jacksonville, says her job performance did not meet expectations. “Her sales were not acceptable; brought in 8 patients in two months,” Boyd noted in a court document.

Matthew Heller is a freelance writer and editor based in Los Angeles. To comment, email editors@workforce.com.