“Hotness discrimination” lawsuits are getting hotter, with a Florida woman now alleging that her former supervisors at a nonprofit considered her “too sensual” and told her that her large breasts were “too distracting.”

Amy-Erin Blakely (left) and attorney Gloria Allred

Plaintiffs in discrimination cases based on physical appearance usually claim they were treated unfairly in the workplace because they were not attractive enough. Amy-Erin Blakely, though, has alleged reverse discrimination based on being hot or sexy in her case against the Devereux Foundation, a leading provider of children's mental health services.

“Every day I had great trepidation and fear that I was going to either be humiliated, harassed or lose my job because of the way I looked, not based on my performance at all,” Blakely said at a press conference with her attorney, Gloria Allred, at her side.

Allred also represents Debrahlee Lorenzana, a former Citibank employee who sued the company last year after supervisors allegedly told her to refrain from wearing pencil skirts and other form-fitting clothing because it was “too distracting” for male colleagues.

Lorenzana's suit seemed like a stretch since, among other things, courts have given employers some latitude in enforcing dress codes. "[A] reasonable dress or grooming code is a proper management prerogative," the 8th U.S. Circuit Court of Appeals said in Craft v. Metromedia, 766 F.2d 1205 (1985).

Blakely, on the other hand, is claiming discrimination based on physical characteristics that, barring plastic surgery, are immutable. “[A]lthough Devereux did not have a written dress code policy, Blakely always dressed in a professional manner,” she says in her complaint.

Hotness discrimination certainly seems to be in vogue. One legal expert has argued that it “epitomizes one of the greater issues in today’s office culture: the tension between one’s business performance and one’s physical attributes that cannot be controlled.”

In what may have been the first case of its kind, a jury in 2005 found Harvard College did not discriminate against a librarian who alleged her supervisor told her “she was seen merely as a pretty girl who wore sexy outfits.” Harvard argued that the supervisor's comments were “innocuous” and did not constitute sexual harassment.

Blakely, 43, was appointed assistant executive director of Devereux Florida in 2003. She suggests her looks became an issue because of office politics — some managers wanted to discredit her with the executive director, Steven Murphy, so he would not name her as his successor.

Shortly after Murphy became Blakely's boss in August 2008, the suit says, managers Gail Atkinson and Jim Colvin “falsely complained to Murphy about Blakely's appearance being inappropriate.” Atkinson also allegedly told Murphy “about Blakely being referred to as, inter alia, a 'hooker.'”

Blakely says Murphy then brought up these complaints at her performance evaluation in January 2009, admonishing her that “you should wear loose fitting clothes or try to hide your breasts because they are too distracting.”

A few weeks later, she complained to human resources about, among other things, “comments made by Colvin, including, but not limited to, comments that Colvin thought Blakely was 'too sensual' to be considered for the Executive Director position.” She made a second formal complaint  in October 2009 — but was fired the next day.

“Blakely's termination was ... in retaliation for her complaints of harassment and discrimination,” the suit alleges.

The Devereux Foundation has described the suit as “purposefully inflammatory, and either spurious or twisted in content and context.” And the complaint is vague about some key points such as

• whether Blakely was actually denied a promotion to executive director because she was “too sensual.”

• whether colleagues directed any “sexually offensive” slurs including “hooker” and “Big Tittie Baby” at Blakely herself or she only heard what they said about her to third parties.

Unlike the Lorenzana case, which was referred to a private judge under the arbitration clause in her employment contract, Blakely's should at least be litigated in public. “We have no information that she signed an arbitration clause,” attorney Allred says.

By Matthew Heller
11/19/20