In the face of persistent unemployment, the New York Times publishes an op-ed to create a burdensome litigation right that will only make it more expensive to hire employees: to wit, ugliness discrimination lawsuits, perhaps as an extension of the Americans with Disabilities Act. Some jurisdictions, such as the District of Columbia, purport to allow such lawsuits already. No one ever seems to think about the workability of such litigation: does a "7" have a prima facie cause of action if he or she is passed over a promotion for a "9"? Is a pleasant appearance a legitimate job requirement for sales, or does an employer have to accept the problem of repulsing customers? Is slovenliness and being unkempt protected, or does the right only extend to aesthetic problems of the face and body?
Daniel Hammermesh, in the course of promoting his new book, proposes solving this problem: "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." Of course, that only leads to litigation over whether a plaintiff is in the second percentile or the third percentile. I'm reminded of Judge Easterbrook's concurring opinion in Gammon v. GC Services over the problems of interpreting a law to give a cause of action for deception of the "least sophisticated consumer":
[U]sing the "least sophisticated consumer" as the benchmark would create big problems when determining whether the plaintiff belongs to the class he purports to represent. Imagine the deposition:Q: Mr. Gammon, I see that you received a C+ in high school English and read detective stories. How then can you be included among the least sophisticated recipients of debt collection notices?
A: Counsel, even my best friends will tell you that I am a simpering fool.
Will a defendant in an ugliness trial be allowed to require the plaintiff to get a makeover before presentation to the jury over the question of whether the plaintiff is in the protected class, or can the plaintiff deliberately choose unflattering makeup and clothing? And what do we do with the fact that jurors are more sympathetic to better-looking plaintiffs and attorneys?
The sad thing is that Hammermesh is a professor of economics. I'd expect this sort of nonsense from a law professor or a sociologist, but you'd think that an economist would have a basic understanding of transactions costs before proposing such public policy malpractice.