The Invisible Ground of Equality: Physical Appearance, Body Size, and the Limits of Protected Characteristics in Comparative Anti Discrimination Law

Anti-discrimination law singles out protected personal characteristics, making disadvantages legally relevant when they fall under established grounds. Appearance exposes the limitations of this architecture. It may affect access to employment and social goods and intersect with sex, race, disability, age, religion, and socio-economic class. Yet neither physical appearance nor body size is an autonomous protected ground under the dominant European Union employment equality regime. This article compares the EU’s ground-based architecture, France’s explicit protection of physical appearance, and New York City’s targeted protection of height and weight. It argues that the EU approach creates a derivative protection trap: appearance-related harm receives protection only when reframed through a recognised ground. France and New York City offer different alternatives. Drawing on comparative anti-discrimination theory, the article proposes an appearance-relevance test addressing disadvantage, stereotyping, functional relevance, and proportional justification. Its purpose is to distinguish private preferences from appearance-based exclusion from significant social opportunities.