By Howard Levitt and Lavan Narenthiran

Attractive, tall, well-dressed people get ahead. The law doesn’t protect you from that — nor should it.

Whether we admit it or not, looks matter — more than most of us want to believe. They shape how others perceive us, how we are treated and, to the point, how much we earn.

Despite decades of human rights legislation, diversity training and corporate rhetoric about merit, one uncomfortable truth persists: the workplace is no meritocracy.

It never has been..

We are human and humans are biased. We judge books by their covers and attractive covers sell. The good-looking, tall, fit and well-groomed consistently get the nod, the promotion, the bigger paycheque. Sociologists call it “pretty privilege.” Employers try to call it “fit.”

Studies show that taller men earn more, are perceived as more authoritative and are over-represented in executive ranks. Women who conform to conventional standards of beauty tend to excel in client-facing roles. Even small details — neat hair, polished shoes, a properly fitting suit — can create an impression of competence and confidence that has nothing to do with actual performance.

That is not conjecture. It is human psychology — and business pragmatism. We have extolled the benefits of dressing for success in this column. We want our lawyers to be attractive and presentable — and so do our clients. Our law firm is not unique in that.

Contrary to popular belief, not all discrimination is illegal.

Canadian human rights codes protect against bias based on race, religion, age, gender, disability and similar characteristics. But they do not protect against discrimination based on appearance, attractiveness or weight (subject to disability-related weight, which employers still often find a way around).

If a hiring manager decides not to hire you because you are too short, too heavy or simply “not the right look,” that’s not unlawful. It may be shallow, but it is not illegal.

Again, there have been human rights cases prohibiting specific height standards because they discriminate against certain racial groups that are statistically shorter. But apart from that, hiring taller people is generally not illegal.

The law does not — and should not — police every human preference. Employers are legally entitled to choose candidates who present better and “look the part.” Unless that decision crosses into one of the enumerated protected grounds (for example, a disability that affects appearance or a religious dress practice), it is perfectly legitimate.

The restaurant chain Hooters provides the most obvious example. It has faced lawsuits for decades — from men denied server jobs and from women alleging sexual discrimination. Its defence? That being female and conventionally attractive was a bona fide occupational requirement — a legal exception allowing discrimination if a characteristic is genuinely essential to the role.

In essence, Hooters argued that its servers were not just delivering wings — they were part of the entertainment. The company eventually settled for millions, but its argument was not dismissed as absurd. Courts in both the United States and Canada have occasionally recognized that in industries where “image” is the product — hospitality, fashion, entertainment — appearance can legitimately be part of the job description.

We suspect that a case against Hooters for only employing large-breasted women would fail in Canada because that is precisely what it advertises and what attracts its patrons.

Airlines once tried similar defences to justify hiring only young, attractive female flight attendants. That would not survive today’s scrutiny, at least respecting age, but the principle remains: if image is demonstrably tied to the core business, the law sometimes looks the other way.

Today, employers rarely say the quiet part out loud. They talk about “fit,” “presentation” or “professionalism.” But we all know what that usually means.

Even remote work has not eliminated the bias. On Zoom, good lighting and a crisp background project competence; a dark screen and slouched posture suggest the opposite. The same logic extends to LinkedIn photos, email signatures and even tone of voice.

Perception, not merit, still rules

Don’t waste energy resenting it — leverage it. You cannot change your height or bone structure, but you can control your presentation. Dress professionally. Groom carefully. Speak with confidence. These signals matter because people, not machines, make the decisions

While appearance-based judgments are largely legal, they are also risky. A workplace culture fixated on looks can easily veer into unlawful territory if those standards disadvantage protected groups.

The best employers know that while polish can help sell the product, substance sustains it. Overvaluing appearance is not just ethically dubious — it’s bad business.

Until legislatures expand human rights protections to include “appearance,” pretty privilege will remain alive, well and entirely lawful. Employers can hire, promote and pay based on who “looks the part,” and unless that overlaps with a protected ground, no human rights tribunal will intervene.

Because in the real world of business, image is the product — or at least a large part of it.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario and Alberta, and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada. Lavan Narenthiran is an associate at Levitt LLP.