Recently, Abercrombie & Fitch CEO Mike Jeffries has come under fire for what some may call the company's "no ugly chicks" approach to marketing and retail.    

Jeffries' remarks from an interview with Business Insider were published on the elitedaily.com website, which has also questioned whether Jeffries is "the worst CEO in the world" based on "The 13 Most Ridiculous Things Mike Jeffries ... Has Said." 

While Jeffries "anti-fat" and pro-"cool kid" comments may be insensitive –and even bigoted – towards those that who do not meet the traditional American standard of beauty, employers, such as Jeffries, who display a "beauty bias" in their employment-related decisions cannot automatically be accused of illegal discrimination. 

The New Jersey Law Against Discrimination (LAD) prohibits discrimination on the basis of "race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectational or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer." 

Notably absent from the LAD's comprehensive list of protected statuses and/or characteristics is appearance and appearance-related attributes like height, weight, and hair or eye color.  This is because employers have a "valid interest in regulating the image that its employees present to the public."  Marrero v. Camden County Bd. of Soc. Servs., 164 F.Supp.2d 455, 477 (D.N.J. 2001).  Thus, employers cannot reject applicants or make employment decisions on the basis of a protected or immutable characteristic such as race or age, but they can do so based on subjective ideals of beauty. 

Therefore, if an employer makes a particular employment decision on based on what it believes to be an individual's "attractiveness," and it has a legitimate, non-discriminatory business reason for doing so, the LAD does not permit an individual who was negatively impacted by that decision to pursue a claim for "appearance discrimination." 

While so-called "appearance discrimination" claims have been on the rise in recent years - particularly against the hospitality and casino industry - it does not appear that New Jersey Courts (or the Legislature) are particularly interested in expanding what is already one of the most inclusive anti-discrimination statutes in the nation. 

So Mike Jeffries can relax - Abercrombie's "beauty bias" is (for now) legal discrimination under the LAD. 

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