Can You Be Too Sexy for Work -- Legally?

Debrahlee Lorenzana was a Citigroup employee who suffered long drooling stares from co-workers and widespread discrimination from her bosses, on account of her being too sexy.

Richard Thompson Ford uses the bizarre story as a news peg for an amusing take on the legality of hiring and firing for looks.

Workplace dress codes are mostly legal unless they impose "unequal" (not just different) burdens on men and women, he writes.

For instance, in Jespersen v. Harrah's Operating Co., a bartender at a Reno, Nev., casino sued when her employer adopted a new dress code that required her to style her hair and wear makeup. Jespersen complained that she found wearing makeup "degrading." But the 9^th Circuit Court of Appeals found that Harrah's grooming code was equally burdensome for men and affirmed the dismissal of her lawsuit.

Why isn't a place like Hooters illegal? It comes down to a clause in Title VII that carves out an exception to anti-discrimination rules if the employer can prove that a certain characteristic is a "bona fide occupational qualification" (BFOQ). You can't hire whites to the exclusion of non-whites, or hire fertile men but ban fertile women (as Johnson Control amazingly once required). But there's no law that explicitly bars companies from hiring on the basis of beauty, so long as they can prove that looks are a bona fide occupational qualification (hence, Hooters).

But in the case of Frank v. United Airlines, the company was sued for requiring female flight attendants to adhere to a stricter maximum weight standard than male employees. The 9th Circuit found the policy discriminatory. United essentially followed the CBS sit-com rule of allowing frumpy men but not frumpy women. However, the Court still upheld the broader rule that "an appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment."

Lorenzana isn't fighting a rule that requires her to be more glamorous. On the contrary, she's fighting for the right to glam. Her bosses banned clothes for her that they allowed for other women because (they said, allegedly) "they aren't as hot as you are." But by that standard, they would also have to warn, discipline and ultimately fire barrel-chested men with nicely tailored suits to maintain a monkishly lust-free office environment to maximize profits (or something). Instead, this kind of clear-cut discrimination should make the suit a slam dunk for Debrahlee. It's not a case about bona fide occupational qualifications. It's a case about bona fide curves as an occupational hazard.