Sex didn't sell? ... a Ksubi fashion campaign at General Pants.

General Pants store promotion last year.

General Pants, a popular clothing chain, appears to have found a winning formula for hiring shop assistants: no ugly people.

Wander into any store across Australia and it's likely you will be greeted by staff who are young, beautiful and hip to the hipbone.

While General Pants would hardly be alone in seeking to recruit presentable staff - and the company wasn't immediately available to comment - would such a practise be illegal even if it did?

Employers can be sued for discriminating on the basis of gender, race or disabilities. But, with the exception of one Australian state, they are free to discriminate when it comes to physical appearance.

Dubbed "lookism", the practise is apparently common across all businesses and industry groups - not just the so-called customer-facing sectors such as airlines and retailing.

The issue of lookism is gaining traction in the US with multi-million dollar payouts, and experts say it is a matter of time before Australian companies face similar legal challenges.

Kennett leads

Jeff Kennett, the former Liberal premier of Victoria, is known for a pro-business stance that saw the state sell off its power sector and much besides while in power in 1992-99.

Less well-known among his reforms, perhaps, was the introduction in 1995 of a law making "lookism" illegal in the state.

According to Stanford University law professor Deborah Rhode, Victoria remains the only jurisdiction outside the United States that places an explicit ban on appearance-related bias.

Victorians can sue their bosses or prospective bosses for discrimination based on "physical features". The law states that the physical features in question can be "natural", which covers height, weight and facial features, or "mutable" aspects, such as unruly hair, tattoos and piercings.

Since the law's introduction, more than 1800 lookism inquiries have been fielded by the Victorian Equal Opportunity and Human Rights Commission.

In other states, which do not have laws against lookism, such complaints are usually cobbled on to other legislation, such as sex or disability discrimination, according to employment lawyers.

Confidential cases

Lookism lawsuits in the US occasionally make the headlines. More would do so if the vast majority of such cases weren't settled confidentially.

Some of the blanks, though, can now be filled in, at least as far as Victoria goes. New research, soon to be published in the peer-reviewed International Journal of Work, Organisation and Emotion, gives the first snapshot of lookism in Australia.

After trawling through the 1800 inquiries lodged in Victoria from 1995 to 2005 with the Victorian Equal Opportunity and Human Rights Commission, University of Sydney academics have found that employees are becoming more aware of lookism.

In 1995, the year the act was passed, there were 93 inquiries about "physical features' discrimination, making it the 13th most-common enquiry. A decade later there were twice as many lookism inquiries, pushing it to 7th on the rankings.

Surprising trends

Digging deeper, the researchers found more surprising trends.

"More men are making claims and the ratio is now a third of claims made by men,” said Chris Warhurst, professor of work and organisational studies at the University of Sydney, and a co-author of the study.

Odder still is the number of complaints being made in non-service industries, particularly in manufacturing and transport.

Manufacturing had the highest proportion of "physical features cases" of all industries, accounting for 14.3 per cent of total cases.

"Labourers and related occupations" had the second-highest proportion of lookism cases by occupational group, behind sales and service jobs. Tradies, it seems, have appearances to keep up.

And if it's hard to imagine a factory worker complaining about such discrimination, you're not alone.

“The manufacturing finding really threw us,” Mr Warhurst said, adding that it's one subject he is investigating further.

Bullying pushback

In Mr Warhurst's view, the increased emphasis on looks in society may explain why the concern about appearances is spreading from services to more blue-collar jobs. Alternatively, the shift may also reflect workers use of the "lookist" legislation to push back against “straightforward bullying”, he said.

Michael Harmer, chairman of Harmers Workplace Lawyers - one of Australia's largest employment law practices - is less surprised that manufacturing should rank so highly.

“We get some of the worst cases of bullying, mobbing, initiation… in sectors such as manufacturing,” Mr Harmer said. “Often against people that do not fit in on various grounds, including lookism”.

Among more than 1000 cases seen by his firm each year, Harmer estimates about 30 per cent involve lookism, although usually in relation to sexual harassment or disability discrimination.

“Although Victoria has the specific legislation, we run [lookism] cases across the country. It's just that you will have to fit it into other modes of discrimination or employment rights.”

A recent case involved a financial services firm where a gym-obsessed manager looked favourably upon colleagues who were physically fit. One “very talented” employee, approached Harmers Workplace Lawyers because he was being told that he better “get to the gym” if he wanted a promotion.

“Obesity was seen not to fit in with the look and calibre of the partners,” Mr Harmer said.

Too good looking

It's not only unattractive people who get picked on. Beautiful people can also suffer on account of their looks, Mr Harmer said.

The most famous case of "beauty lookism" happened in New York in 2010, when Debrahlee Lorenzana, a Puerto Rican single mother, filed a suit against Citigroup, claiming that she was fired from her job at a Citibank branch for looking too "hot".

“Plaintiff was advised that as a result of the shape of her figure,” her lawsuit read, “such clothes were purportedly 'too distracting' for her male colleagues and supervisors to bear".

Ms Lorenzana's case looked promising. She hired celebrity lawyer Gloria Allred and posed in a low cut dress for a magazine profile titled "Is This Woman Too Hot To Be a Banker?" The media, of course, stoked interest.

Yet it seems even good-lookism has it limits. Ms Lorenzana's bosses at Citibank maintained that work performance was the reason for her firing, and two years after suing, Ms Lorenzana is still waiting for her payday.

Ugly protection

One business that did cough up for its lookist behaviour was the American retailer Abercrombie & Fitch.

The preppy fashion brand was forced to pay a $US50 million settlement because, as part of its marketing strategy, it was hiring shop assistants with a certain “look”.

That “look”, according to a lawyer on the case, “was that you had to be white, young and physically fit”.

Since the Abercrombie case, attractiveness discrimination has been hotly debated in American legal circles. Danierl Hamermesh, a professor of economics at the University of Texas, caused a stir recently when he suggested that “a more radical solution” was needed.

“Why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?” Mr Hamermesh wrote last year in the New York Times.

Flirting

In Australia, even with Victoria's bold legislation, the lookism debate has barely begun.

NSW briefly flirted with banning lookism in 2000 when the state's law reform commission fielded a submission by the anti-discrimination board to introduce a law protecting against appearance discrimination. The submission was rejected.

The issue, however, is unlikely to disappear.

According to Peter Rochfort, a Sydney-based lawyer with 30 years of discrimination case experience, lookism is "extremely prevalent".

"Everywhere you turn virtually you can find issues," he said.

Mr Rochfort says it's time Australia had a serious debate about how to assist "unfortunate looking" people who are disadvantaged in the work place, routinely passed over for jobs, pay rises and promotions.

"I would like to see someone try it on ... to see if they can argue or have argued for them perhaps on the equal opportunity commission".

Such cases, though, can be difficult to prove - which may perhaps be why Victoria has been going it alone for the past 17 years.

(Jonathan Swan worked as a part-time sales assistant with General Pants for half a year in 2004.)