Often, in a mediation, one and/or both parties tell me that they would rather go to trial than accept or pay the sum of money (or other item) being discussed as a compromise of the matter. At this point, I discuss the risks of going to trial. Sometimes I am successful; sometimes I am not.

But one point that I do not always bring up but should is “beauty bias” or how one’s very appearance can affect outcomes. In May 2010, Professor Deborah L. Rhodes published The Beauty Bias (Oxford University Press, 2010) discussing this form of discrimination. She also published an article entitled “The Beauty Bias – The Injustice of Appearance in Life and Law” in the May 2010 edition of Brennan Center for Justice at New York University School of Law. She begins the article by stating:

“It hurts to be beautiful” is a cliché I grew up with. “It hurts not to be beautiful” is a truth I acquired on my own. Only recently have I begun to grasp the cumulative cost of our cultural preoccupation with appearance. . . Most people believe that bias based on beauty is inconsequential, inevitable or unobjectionable.”

“They are wrong. Conventional wisdom understates the advantages that attractiveness confers, the cost of its pursuit and the injustices that result. . .”
(Id. at p.1).

Professor Rhodes continues, discussing the costs and consequences of appearance noting that,

“Beginning at birth, those who are viewed as physically appealing are also more likely to be viewed as smart, likeable, and good. The ridicule and ostracism that unattractive children experience can result in lower self-confidence and social skills, which leads to further disadvantages in later life. Appearance also influences judgments about competence and job performance, which, in turn, affect income and status. Résumés get a less favorable assessment when they are thought to belong to less attractive individuals. These individuals are less likely to get hired and promoted, and they earn lower salaries, even in professions such as law where appearance has no demonstrable relationship to ability.” (Id. at p. 3).

Consequently, someone who appears plain, or overweight, or short, or frumpy will be viewed as less attractive and unconsciously will be discriminated against.” ( See, “Fair Enough” by Kara Platoni, Stanford Magazine (September/October 2010) at p. 6). Similarly, a woman can also pay a penalty for being too attractive. Being too sexy, or too attractive creates a negative characteristic based on the assumption that such women are not too bright. (Id. at p. 47). Or, the objection may simply be that such women are “too distracting,” “too sexy”, “too hot” or “too sensual.”

Being overweight leads to the assumption that the person is lazy, undisciplined or unfit. (Rhodes, supra, at p. 5).

So. . . two women plaintiffs walk into court for trial; one is wearing make-up, high heels and fashionably dressed; the other is wearing no make-up, flat shoes and plain, ordinary (if not a little frumpy) clothes. As a juror, how would you perceive these individuals; what is your gut reaction to each, at least initially? This is “appearance” bias.

These two women plaintiffs are each represented by male attorneys. One is overweight, not good looking and is wearing an out of fashion or perhaps a crumpled suit while the other one is slim, attractive and well dressed. Again, as a juror – what is your gut reaction? Which attorney will you be more favorably disposed to, at least initially? This, too, is “appearance” bias at work.

In sum, while a party may have a “great” case on the merits, her appearance (or that of her attorney) may sabotage the outcome. As Professor Rhodes concludes in her article, “beauty may be only skin deep, but the damages associated with its pursuit go much deeper.” (Rhodes, Id. at p.10.)

. . .Just something to think about.


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