Can an ugly short girl sue?
January 3, 2010 7:02 PM   Subscribe

How come people that employ fashion models aren't subject to anti-discrimination laws?

If you refuse to hire some one because they are fat, ugly, the wrong color, whatever, you can be sued for anti-discrimination. Why sn't this true (I assume) in the fashion industry? They can hire you entirely based on how you look.

Does anyone know what the legal explanation for this is? Can you extend it elsewhere? "We only hire Chinese to waitress at our Chinese restaurant." Legal? "We only hire white people cuz our theme part is Oregon-trail (or Swedish) themed " Legal?
posted by esereth to Law & Government (21 answers total) 3 users marked this as a favorite
Bonafide Occupational Qualification Exception to Discrimination Laws.

For models, I imagine that they argue that being good looking is a bfoq. For waiters and theme park workers, the most important part of their job is waiting tables/doing whatever it is they do at the theme park, not how they look, so looking a certain way isn't a bfoq.
posted by wuzandfuzz at 7:08 PM on January 3, 2010 [6 favorites]

Can you extend it elsewhere?

Casting for movies.
posted by FishBike at 7:11 PM on January 3, 2010

To clarify, I meant that they can apply their definition of good looking and "right for the shoot" or whatever to exclude people of certain ethnicities because the most important part of the job is how they look. But I haven't actually read any cases discussing the intricacies of this, its just my guess based on my employment law class last year.
posted by wuzandfuzz at 7:11 PM on January 3, 2010

Additionally, jobs like spokesperson, hostess, customer service rep (when forward facing), all allow "discrimination" as you describe it. "Fat" and "ugly" are certainly not protected, fwiw.
posted by shownomercy at 7:20 PM on January 3, 2010

I think the law is worded in the sense that an employer can discriminate based on any criteria other than the protected classes, maybe even if the criteria do not have anything to do with the job requirements. As previously stated, ugliness is not a protected class.
posted by meowzilla at 7:22 PM on January 3, 2010

Bonafide Occupational Qualification Exception to Discrimination Laws

Yep, same way that all waitresses at Hooters are females. With hooters.
posted by ttyn at 7:24 PM on January 3, 2010

"Discrimination" is not bad. Certain kinds of discrimination are bad.
posted by pompomtom at 7:27 PM on January 3, 2010 [1 favorite]

Models have to fit into the sample clothes, which is why "regular size" models are sizes 0-2 and "plus size" models are sizes 8-12 (US sizes)--that gives them leeway to take in sample sizes, which are 4-6 US for "regular size" and 14-16 for "plus size". It's a lot easier to take in clothes (make them smaller) than let them out (make them bigger).

So models actually do have to be slenderer than the average person, because they need to fit in all of the sample clothes, even the ones that run small. (The question of why sample sizes are so small is a different question, but the people who hire models for events aren't the people who are in charge of that.)

As for "ugly" there's no one standard of that. Some people think some of the world's top supermodels are "ugly" and others think the same people are the most gorgeous humans ever.
posted by Sidhedevil at 7:35 PM on January 3, 2010 [2 favorites]

On the restaurant thing, there's a pretty simple workaround. There was article in I think the Toronto Star quite some years ago on hiring nannies. The article argued that nannies become friends with one another in parks and while their charges interact. If your nanny doesn't integrate well into the local nanny network your kid isn't going to get as many opportunities to play with local kids. Of course, you can't discriminate on the basis of race or ethnicity, though. The solution (according to this article)? Go to your park. Find out where the nannies come from. If your neighbourhood nannies are primarily Filipino, post a requirement for a Tagalog -speaking nanny.

I would imagine it's fairly easy for restaurants to hire only mandarin speakers.

Some theme park workers (but not all) are likely classified as quasi-actors/performers.
posted by If only I had a penguin... at 7:36 PM on January 3, 2010

Same reason you can require someone to be able to lift 50lbs or be at least 5'7". As long as you state it in the ad it's perfectly legal to have physical requirements for a job.
posted by fshgrl at 7:46 PM on January 3, 2010

I've spent some time this year researching BFOQs for the human rights commission (who, in Canada, look into these things on complaints). wuzandfuzz has it, but not everyone here is giving good advice.

For example, (not to pick on) fshgrl's example of "as long as you state it in the ad it's perfectly legal". At least in Canada, that's not true. Roughly speaking, a BFOQ requires that the employer reasonably believes that the requirement is needed, and that there is either no way of accommodating the complainant or that such accommodation is unreasonable. But if I was hiring a firefighter, and stated that only men are allowed because men are stronger and have more lung capacity etc etc., I would lose that case. Because really, the requirement is x lung capacity, or y carrying strength. It has to make sense for the job.
posted by Lemurrhea at 7:53 PM on January 3, 2010 [3 favorites]

If you need an analogy to better understand BFOQ, consider that the ADA also (generally) states accommodations must exist for people who have learning disabilities. However, that does not mean a person with a neurological condition could become a heart surgeon who gets "extra time."

There are a lot of grey areas, but modeling isn't one of them. Looking like what the photographer/director/other employer wants is the qualification central to the job. If he wants a white female model, approximately 5' 8", that's his vision for what he wants to produce.

The first episode of Boston Legal plays around with this idea in terms of casting a child for the role of Annie. The client is a mother who believes her child was not chosen for the role because she was black. It's not exactly your scenario or a real legal situation, but it's interesting to think about.
posted by mccarty.tim at 8:02 PM on January 3, 2010

I have a friend who is a fit model, and I always thought it was kind of interesting that her body is obviously precisely the size they require (and she works hard to keep it EXACTLY that way), but she's not actually that pretty. So clearly the size is the #1 priority to her employers, and a short girl, no matter how ugly, or thin, for that matter, would just not be the right size.
posted by BlahLaLa at 8:14 PM on January 3, 2010

First of all, the people who hire models go to a talent agency. The agency is the one who does the real discriminating. Since having an agent is a voluntary thing, they can discriminate all they want. The casting director or the people putting on the fashion show send out a list of what they are looking for to all the agencies. The agency looks at the lists and send the models that meet the criteria. Then the ones that walk the best, have the right look, or (for acting) read the best get the job.

There is a usually the agency layer between the casting and the person looking for a job. There are open calls, but they are in a different league and usually only for actors. (Not always.) This is why being signed to an agent is so important for models and actors.
posted by TooFewShoes at 8:15 PM on January 3, 2010

Court Case against Hooters:

Legal status
Main article: Bona fide occupational qualifications

In employment discrimination law in the United States, employers are generally allowed to consider characteristics that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQ). For example, a manufacturer of men's clothing may lawfully advertise for male models. Hooters has argued a BFOQ defense, which applies when the “essence of the business operation would be undermined if the business eliminated its discriminatory policy”.[13]
[edit] Employee handbook requirements

An older version of the Hooters Employee Handbook (prior to October 2006), published in the The Smoking Gun reads:[15] which notes that:

Customers can go to many places for wings and beer, but it is our Hooters Girls who make our concept unique. Hooters offers its customers the look of the "All American Cheerleader, Surfer, Girl Next Door."

Female employees are required to sign that they "acknowledge and affirm" the following:

1. My job duties require I wear the designated Hooters Girl uniform.
2. My job duties require that I interact with and entertain the customers.
3. The Hooters concept is based on female sex appeal and the work environment is one in which joking and entertaining conversations are commonplace.
4. I do not find my job duties, uniform requirements, or work environment to be offensive, intimidating, hostile, or unwelcome

posted by kch at 8:20 PM on January 3, 2010 [2 favorites]

It is possible to use BFOQ in hiring even according to race or ethnicity. For instance, where I work, we have an internship program which is dedicated to recruiting interns from a specific ethnic community. One of the preferred qualifications for hiring the mentor/coordinator for these interns is that they have a significant background as a member of that ethnic community. Because that degree of familiarity is considered an essential requirement the job, it's not discriminatory. Do not that for non-essential characteristics there could still be discrimination, if, for instance, we selected only males or the able-bodied for this job. Neither of those are essential to the job function.
posted by Miko at 8:21 PM on January 3, 2010

Lemurrhea & mccarty-tim- fashion models are independent contractors, not employees, so they are not protected by the ADA, Fair Labar Standards Act etc. At least not in the US.
posted by fshgrl at 8:30 PM on January 3, 2010

In Vegas, some casinos hire cocktail waitresses whereas others hire "drink models" or "bevertainers" (the latter sing, dance, etc. in addition to serving drinks). The reason they invented the latter two categories was so they could legally discriminate and only hire young pretty women with boob jobs.

You can usually look around and tell which type of casino you're in.
posted by Jacqueline at 5:12 AM on January 4, 2010

Some restaraunts hire wait staff as entertainers rather than waitstaff. This allows them to "cast" whatever type of "character" they want to serve patrons - big boobed blonde, german boy in leiderhosen...
posted by WeekendJen at 7:26 AM on January 4, 2010

I remember there was a newscaster who sued her station years ago for this. She felt she was being let go because she wasn't attractive enough. The station didn't deny this - claimed the BOQ exception, arguing successfully that the attractiveness of their newscasters had a correlation to their ratings, and the woman lost her case.
posted by Sully at 7:51 AM on January 4, 2010

You might find the documentary Live Nude Girls UNITE! interesting. It delves into a lot of the labour exploitation at the Lusty Lady, a peep show in San Francisco. Some of the really egregious labour practices (like requiring that a dancer's replacement, if she had a sick day or something like that, was of equal or lighter skin colour) were addressed by the formation of a union.
posted by carmen at 10:09 AM on January 4, 2010

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