In this economy, those folks who do not have a job often think or say that they would do anything

to get a job. Sometimes anything is not enough. Employers make employment decisions for all kinds of reasons. Some of those reasons are predictable, and others can not be anticipated. A rational employer would always seek the person who brings the most value to the employer. Value can be defined in a number of ways. Value can be a function of cost. It can be a function of qualifications. It can be a function of experience. Different employers will find value in different places. That is why an employee who is exemplary for one employer may turn out to be a bust for another employer. But what if an employer finds the value of an employee in how the employee looks? I was with a gentleman a few weeks ago who told me that his father ran a small business a generation ago. And he told me that his father always had a beautiful receptionist and a beautiful secretary because it was important to his business that clients who came to see him were greeted by physical beauty. I suppose that is an interesting concept. It cant really be disputed that human beings seek out beauty. And it might be possible that individuals confronted by beautiful people may be more likely to transact business with a company that employs beautiful people, all else being equal. However, Id still put my faith in delivering on service and product over beauty as the ultimately decisive factor. Still, some employers could find value in having beautiful personnel. The question that this column usually asks though is whether that type of decision is legal. Last week a federal court in Georgia was confronted with just this type of question. A district attorney in Georgia had an opening for an investigator in his office. He hired a physically attractive man over three otherwise-qualified women for the job. When the women were passed over they determined that the reason they did not get the job was because of their gender. This is a common claim and one that would ordinarily not be considered fodder for this column. But the distinguishing factor in this case was that the women claimed that they were passed over for the physically-attractive man because the boss who hired him is a homosexual who was sexually attracted to the man he hired. The women claimed that because the deciding factor in the hiring decision was the physical attractiveness of the man, that they had been the subjects of discrimination on the basis of their gender. The question before the court was whether the hiring of a man due to the boss physical attraction to him, to the exclusion of otherwise qualified female candidates, constituted illegal discrimination against the women on the basis of their sex. The women claimed that the employer categorically excluded an entire gender class for consideration of a job because that class did not fit the boss sexual preference. The court said that the conduct of the employer did not constitute sex discrimination. It constituted sexual favoritism which the court said is not prohibited by law. The court said the women were not excluded because they were women, but simply because the boss favored the attractive man. He did not favor all men to the exclusion of the women, he only favored this man to the exclusion of the women, and therefore his act was not illegal.

I disagree with the court. I think the decision was made on the basis of sex and was thus illegal. I am curious to see if the case is appealed. Eric Brown is an attorney from Waterbury. He can be reached at 203-676-9110.