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Article Excerpt
I. INTRODUCTION
One of the most vexing problems in the application of Title VII of the 1964 Civil Rights Act concerns the extent to which this omnibus anti-discrimination statute should limit an employer's opportunity to place constraints on the ways in which its employees present themselves to the public. Specifically, does the statutory ban on sex-based discrimination have any application to employment policies or individual employment decisions that penalize individuals for the way they present themselves in terms of attire and behavior or for other aspects of their sexual identity, including their choice of sexual partners?
The Supreme Court has articulated a doctrinal framework that, if construed and applied properly, provides the lower federal courts with the analytical tools necessary to identify and proscribe workplace rules that compel individuals to adhere to appearance, attire, and behavioral norms that operate to reinforce gendered expectations. (1) Since the Supreme Court has ruled that penalizing an individual for failing to conform to gendered norms of behavior constitutes a form of sex-based discrimination/one would expect that employees would have achieved some measure of success in challenging such policies. Yet although the lower federal courts acknowledge, in the abstract, that gender nonconformity is a form of unlawful sex-based discrimination, when it comes to scrutinizing challenges to workplace dress and appearance codes brought by individuals whose presentation of self reflects their nontraditional lifestyle these courts typically choose to classify the motivation behind the subject rules as reflective of prejudice based on sexual orientation or transgendered status, rather than on the enforcement of sex-based stereotypes. Then, because Title VII consistently has been construed not to proscribe discrimination on the grounds of sexual orientation or transgendered identity, the courts have been unwilling to strike down these sorts of employment decisions. A review of the extant lower court jurisprudence reveals that these courts have been disinclined to apply the Supreme Court's gender nonconformity doctrine to cases involving individuals who are subject to workplace discrimination because of the way they look, behave, or identify themselves. By focusing on the fact that most of the plaintiffs who claim that they have been subjected to gendered stereotypes lead, or appear to lead unconventional lifestyles, particularly gays or transsexuals, the courts typically refuse to rule in their favor or even allow them to present their cases to juries. (3)
II. PHILLIPS AND THE "SEX-PLUS" DOCTRINE
This story begins with the Supreme Court's 1971 ruling in Phillips v. Martin Marietta Corp. (4) Ida Phillips claimed that her employer's policy of refusing to accept job applications from women--but not men--with pre-school aged children violated Title VII's ban on sex-based discrimination in employment. (5) Martin Marietta made no effort to cloak its motivation for the rule. The corporation's policy was aimed neither at protecting pre-school aged children from the evils associated with working parents nor at protecting itself from the hazards of employing workers with pre-school aged children. It couldn't be. After all, Martin Marietta was perfectly happy to employ the fathers of these offspring. Manifestly, the one and only reason that the corporation initiated and maintained this policy was that it assumed that the mothers--but not the fathers--of such young tykes would not report to work when their charges fell ill. (6)
Both the trial judge and the Fifth Circuit Court of Appeals granted summary judgment to the defendant. (7) Since Martin Marietta indisputably employed an overwhelming number of women in the position sought by Ms. Phillips, the courts concluded that the corporation's policy raised "no question of bias against women as such." (8) In a single paragraph, per curiam ruling, the Supreme Court vacated the decision and remanded the case to the lower courts. (9) The Supreme Court's ruling was not based on the lower courts' failure to recognize that Martin Marietta was imposing a job requirement--not having pre-school aged children--on women that it did not apply to men. Rather, the Court reasoned that the lower courts had erred in making a pretrial ruling that the policy was enforceable as a matter of law. (10) The Court left open the possibility that further development of the record could reveal that the mothers of pre-school aged children might indeed have family obligations not faced by men which could render them less capable of performing their jobs. (11) Thus, although the Court rightfully acknowledged that this particular employment practice was, as a prima facie matter, facially sex-differentiated, it also declared that the company, on remand, might be able to establish that its policy was justified under Title VII's bona fide occupational qualification (BFOQ) defense. (12)
Although the Phillips Court's terse opinion did not offer any detailed explanation for its conclusion that the plaintiff at least had made a prima facie showing that she had been subjected to a sex-based employment practice, it did not take the lower courts long to draw an ill-conceived doctrine out of the Court's sparse text. The Phillips Court expressly had ruled that it was insufficient, as a matter of law, for the company to defeat the plaintiff's claim of sex discrimination merely by demonstrating that it had hired many other women for the job she had sought. (13) A facially sex-differentiated policy that excluded a sub-group of women could, in the absence of a BFOQ-based justification, violate the statutory ban on sex-based discrimination. The unanswered question was whether the Phillips Court meant to strike down any and all job requirements that compelled female employees or job applicants to hurdle obstacles that were not placed in the path of their male counterparts. The answer was quick in coming.
The lower courts promptly fashioned a broad limitation to the Court's ruling in Phillips--the doctrinally misleading "sex-plus" theory. (14) Paralleling the Title VII notion that biological sex was an impermissible basis for classification because the individual had no control over his or her membership in that group, the courts determined that any "plus" factor used to separate out "acceptable" from unemployable women similarly had to rely on either an immutable trait or characteristic, or to implicate some "fundamental" right. The ruling in Phillips fit into this doctrinal construct, the courts explained, because Martin Marietta's fatal mistake was not simply engaging in intra-sex (15) discrimination, but implementing a requirement that interfered with the fundamental right of childrearing.
This interpretation of Phillips, in turn, left the door open for other policies that excluded different sub-categories of female--or, less frequently, male-workers from employment, under what the courts deemed to be less consequential or otherwise volitional factors. For example, when employers subjected female, but not male (or male but not female) employees or job applicants to requirements relating to height, weight, attire, or appearance, some, but not all members of the targeted group were disadvantaged. The undisputed fact that only one of the two sex groups was subjected to these additional job standards was not deemed sufficient per se to constitute a prima facie case of sex-based discrimination. Rather, the courts invoked their circumscribed version of the sex-plus doctrine, deciding the case on the basis of whether the instant "plus" factor was sufficiently consequential or non-volitional to warrant statutory condemnation. (16)
The impact of the lower courts' development of this analytically challenged "sex-plus" doctrine was compounded when they extended its application beyond the category of sex-based differentiation to cases involving the statutory ban on national-origin discrimination. Employers who required bilingual employees to speak only English in the workplace were found not to have discriminated on the basis of national origin. (17) Then, only five years after Phillips, a private sector employer punished women for procreating by expressly withholding non-occupational disability benefits from female employees who became pregnant. (18) This company's action constituted an obvious example of the very "sex plus" discrimination that Phillips proscribed precisely because of its deleterious impact on a fundamental right--the right to procreate. Nevertheless, the Supreme Court concocted a cost-based justification for its ruling that discrimination on the basis of this quintessential reflection of traditional female identity--pregnancy--did not constitute discrimination on the basis of sex. (19)
The predominant rationale underlying the immutability-mutability paradigm is that in enacting Title VII Congress intended to proscribe only discrimination based on the possession of a characteristic over which the individual had no control. And the "fundamental right" element of the "sex-plus" or "national origin-plus" doctrines was designed to avoid extending the application of the statute to cases of perceived de minimis harm. Both of these explanations, however, either overlook or ignore this legislation's bedrock commitment to preserving human worth and personal dignity. Just as biological sex, national origin, race, or religion are central components of individual identity, other characteristics or traits that involve the presentation of sell such as appearance, language, and lifestyle, regardless of their mutability or immutability, are similarly essential to an individual's sense of self and self-worth. (20) Consequently, these aspects of individuality are no less deserving of statutory protection. Minimizing their importance by characterizing them as "mutable" or "non-fundamental" is, therefore, inconsistent with the overarching objective of anti-discrimination law, i.e., the elimination of arbitrary obstacles to full participation in the employment arena. Although some appearance or dress codes might be justifiable under the limited statutory and judicially-created defenses to Title VII claims, sex-differentiated appearance and grooming codes, at a minimum, should be viewed as constituting a prima facie case of sex-based discrimination.
Over the years, however, some courts modified the harshness of the fundamental right/immutability analysis by offering an alternative standard. A plaintiff challenging a sex-differentiated dress or grooming requirement also can state a prima facie claim of sex-plus discrimination by establishing that the rule imposes an "undue burden" on members of one sex. But as the Ninth Circuit's recent en banc opinion in Jespersen v. Harrah's Operating Co., Inc., (21) forcefully demonstrates, the presence of the "undue burden" operation proves to be of marginal utility to plaintiffs who challenge the enforcement of most dress or grooming codes. (22)
In Jespersen, the defendant imposed a unisex uniform requirement, but also enforced a grooming policy that was sex-differentiated. (23) It required female beverage servers and bartenders to wear make-up but prohibited males from doing so. It also insisted that male, but not female, bartenders have short-cropped hair. (24) When Darlene Jespersen refused to comply with Harrah's makeup requirement, she lost her job. She subsequently brought suit under Title VII, alleging that wearing makeup made her feel sick, degraded, exposed, and interfered with her ability to effectively perform her job because it detracted from her credibility and conflicted with her self-image. (25)
The trial court granted summary judgment in favor of Harrah's on the ground that the policy did not amount to sex-plus discrimination because it did not differentiate on the basis of an immutable sex-linked characteristics. (26) Alternatively, it ruled, the policy did not discriminate on the basis of sex because it imposed equal burdens on members of both sexes. (27) Both men and women had to comply with sex-differentiated policies--women were required to wear makeup and men were required to have their hair cut to a length above the collar. (28) On appeal, the Ninth Circuit panel applied the undue burden test and determined that the plaintiff had not established that the employer's policy imposed a greater burden on women...
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