The article, by Ruth Graham in the Boston Globe “Ideas” section, takes more or less for granted that private parties’ liberties of free association and contract must be curtailed in order to right the “galloping injustice of ‘lookism'”:
Tentatively, experts are beginning to float possible solutions. Some have proposed legal remedies including designating unattractive people as a protected class, creating affirmative action programs for the homely, or compensating disfigured but otherwise healthy people in personal-injury courts. Others have suggested using technology to help fight the bias, through methods like blind interviews that take attraction out of job selection.
Well, if experts favor these measures — though there is nothing even remotely new or unusual about allowing damage recovery for disfigurement in a personal injury action — well, okay, then. I was critical of the “looksism” crusade some years back in my book on employment law, The Excuse Factory, but clearly to not enough effect, since more such laws have been passed since then:
The Constitution forbids employment discrimination on the basis of things like race, sex, and religion [no, it doesn’t — it’s federal statutes that do that — W.O.], but only a few jurisdictions have tried to add appearance to the list, starting with the parts of appearance you can measure. The state of Michigan banned height and weight discrimination in 1977, and six municipalities, including Washington, D.C., and San Francisco, have followed suit with similar statutes. These laws haven’t led to a flood of frivolous suits, as libertarians might fear — in fact, they haven’t led to many suits at all, which suggests they aren’t doing much more than tackling the most egregious cases. ([Stanford lawprof Deborah] Rhode’s book reports that in Michigan, an average of just one case a year makes it to court.)
Notice that the paucity of cases filed directly under these statutes (although one would find more if one looked at suits invoking the ADA) is somehow supposed to be a reproach to libertarians for objecting. One might equally well interpret it as an indicator that such laws are mostly a waste of time even from their proponents’ standpoint, since so few persons are willing to swear out a public document in front of the world alleging that they have lost job opportunities due to personal unattractiveness. (& welcome Instapundit readers)