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Article Excerpt
I. INTRODUCTION
Suppose there are several employees in a particular workplace who regularly engage in some behavior, x. The employer decides to terminate one of these employees, P, citing the fact of P's x-ing. Recognizing that the employer's rationale is insufficient to explain the decision to terminate P while not terminating the other x-ing employees, P challenges the employer to justify this differential adverse treatment.
A logically satisfactory response would require the employer to identify some way in which P, or P's x-ing, is different--i.e., some argument by which P's x-ing provides sufficient reason for P's termination, while not providing comparable reason for terminating the other x-ing employees. Of course, the employer may not be required legally to have any good reason at all for terminating P, so no such response may be necessary, let alone forthcoming. But there is, presumably, at least one important constraint on the reasons to which the employer can lawfully appeal in order to explain why P was singled out for his x-ing: those reasons cannot be discriminatory ones.
But what does this mean? It is tempting to think that it must mean, at least, that the employer cannot lawfully justify P's differentially adverse treatment relative to other x-ing employees simply by appealing to the fact of P's race, color, religion, sex, or national origin. (1) For example, if the behavior in question (x-ing) was arriving late to work, the employer surely could not justify terminating P while not terminating other similarly tardy employees simply by citing the fact that P is, say, of Asian descent. As a matter of law, P's race simply cannot be a consideration that provides reason for treating P's x-ing differently from that of other employees.
But is it really true--for all x and for all P--that the employer in our simple hypothetical case could not lawfully justify the differential adverse treatment of P by appealing to the fact of P's race, color, religion, sex, or national origin? Even without resorting to elaborately concocted counterexamples, we can assign at least one value to x that puts the answer into doubt: Let x be "wearing frilly pink dresses"; (2) let P be a man; and let the other x-ing employees be women. Imagine, now, that the employer responds to P's demand for a justification of his being singled out for his x-ing by declaring, "I am firing you and not them because you are a man, and they are women."
We may or may not be inclined to credit this unvarnished response as adequate from the perspective of a progressive understanding of sex or gender discrimination. Yet, we would surely hesitate to assert--at least as a descriptive claim about the current law--that the employer's explicit appeal to P's sex as the reason for treating him differently establishes ipso facto the fact of intentional discrimination. On the contrary, it is likely that most courts would decline to find actionable sex discrimination here. This implies that there are at least some circumstances in which an employer can legally maintain a policy under which certain behaviors can provide reason to take adverse action against men but not women, and vice versa. In other words, an employer's differentially adverse treatment of one employee as compared to another can sometimes be justified by appeal to the employee's sex, to the effect that--as in our hypothetical--the employer can take adverse action against employees of one sex for engaging in behavior that is deemed acceptable for employees of the other sex.
This implication is at the same time unsurprising and deeply puzzling. It is unsurprising inasmuch as, at some level, one wants to say that of course current employment discrimination law recognizes a legally relevant difference between men and women in the context of regulations governing the way they present themselves in the workplace. Is it not stating the obvious to observe that the law does not require employers to ignore all social norms tied to sex? Would it not be an exercise in absurdity even to entertain the notion that an employer unlawfully discriminates against male employees by restricting their entry into the women's washroom, or vice versa? (3)
Yet, as appealing as this sort of deflating, bullet-biting response may be, it does not answer the deep--or at least nagging--question that remains. My simple hypothetical suggests that we cannot say, as a general rule, that an employee's sex is always irrelevant to the standards of evaluation that justify the employment actions that affect him or her. This seems particularly evident in cases involving restrictions concerning the manner in which an employee may present the appearance of his or her physical body to others in the workplace. But if we presume that there is some legal principle that says that an employee's sex can--at least as to those kinds of restrictions--determine whether a particular employment action is legally justified with respect to him or her, then how can that principle be reconciled with the general legal prohibition of discrimination because of sex? In other words: Suppose it is true that at least some differential treatment based on sex is legally permitted (regarded as nondiscriminatory) in the context of workplace restrictions on dress and physical appearance. Then what, if any, is the more general principle that allows us to distinguish action that depends on consideration of sex, or "sex-dependent" action, in that context from sex-dependent action that is objectionable as discrimination in other contexts?
I argue that the primary doctrines of employment discrimination law do not themselves draw a satisfactory distinction between sex-dependent restrictions on dress and grooming and actions that uncontroversially qualify as sex discrimination in other contexts. I contend that supplementary strategies that courts have used to carve out such restrictions as an area of separate concern are either inconclusive or question-begging. I then consider whether the law's seemingly sui generis approach to sex-dependent restrictions on dress and grooming can be explained or justified on the grounds that they do not implicate the main concerns of equality that the legal prohibition of sex discrimination might be thought to embody. I offer some observations as to what those concerns might be and discuss how sex-dependent restrictions on personal presentation in the workplace might be thought to implicate such concerns. I conclude with a suggestion that the justifiability of the law's current approach to sex-dependent dress and grooming restrictions implies a substantive claim about the possibility and the positive value of preserving a social state of affairs in which men and women enjoy economic equality but adhere to sex-dependent social norms in respect of the outward presentation of their bodies to others.
II. ON THE PROBLEM OF REDESCRIPTION
I begin my analysis with a discussion of a persistent and thorny problem relating to the main issue raised by the hypothetical case presented in the introduction. One might argue that my characterization of the employer's termination of the male employee for wearing a frilly pink dress--as an action depending on consideration of sex is problematic at the outset. If my objective is to determine whether restrictions on personal presentation can be analyzed as sex discrimination, is it not impermissible question-begging to characterize the employer's action in my hypothetical as sex-dependent? After all, the employer's action could, with equal plausibility, be described as a sex-neutral restriction on "inappropriate attire" or as a response to indecorous behavior in the employer's workplace, (4) or perhaps as a sex-neutral effort to protect customer or client sensibilities. The objection, then, is that if I am going to construct an argument about whether workplace restrictions on an employee's mode of personal presentation constitute objectionable sex discrimination, I cannot simply help myself to the characterization of such restrictions as actions based on consideration of sex.
This difficulty is an important one. But I regard it not so much as an objection to my treatment of my opening hypothetical than as an alternative way of stating the very same question that I seek to address in this article. It is surely true that the employer's termination of our hypothetical cross-dressing male employee could be described in facially sex-neutral terms--e.g., as the enforcement of a general requirement of "appropriate" workplace attire or of "professional" behavior. And we might even re-imagine the original hypothetical to suppose that this sex-neutral characterization could be substantiated with evidence that female employees had been fired for comparable infractions (whatever those might be). (5)
I have no interest in denying the potential plausibility of these characterizations. The fact that an employer's termination of a cross-dressing male on account of his cross-dressing can be described in alternative, facially sex-neutral terms does not preclude our asking whether that action constitutes objectionable discrimination. For however else the employer's action might be described, it will remain subject to description as the firing of a male employee on account of his wearing a frilly pink dress. And so long as the employer would not regard the wearing of a frilly pink dress as a reason for firing a female employee, the male employee will be able to articulate a simple claim of differential treatment: he was terminated for an action that would not have been regarded as grounds for termination with respect to a female employee. Since this consideration was regarded as grounds for termination only because he was male, it follows that he was terminated because of his sex. I want to be clear that I do not argue that it follows from the availability of the sex-dependent characterization of my hypothetical employer's action that the action is discriminatory. My point is that the availability of the sex-neutral characterization shows no more and no less than the availability of the sex-dependent one. Let me put it another way. A skeptic might argue that since we do not have any reason (in the absence of further facts) to privilege the description of the employer's action as a sex-dependent termination over its description in more neutral terms, any attempt on my part to analyze the action as sex discrimination will be based on a hopelessly unstable premise. (6) But this objection misconstrues the nature of my inquiry. To repeat, I do not mean to suggest that the possibility of describing an action in sex-dependent terms proves that the action constitutes sex discrimination. (7) By the same token, however, the availability of a sex-neutral redescription of my hypothetical male employee's termination is not necessarily preclusive of a description of that same action as a sex-dependent one.
So, although one might think that an analysis of whether restrictions on dress and grooming constitute sex discrimination requires a threshold inquiry regarding how we are to adjudicate between competing sex-dependent and sex-neutral characterizations of the same action, what I am suggesting is that such an inquiry is really just an alternate formulation of precisely the question that motivates this article. The question of how to choose between such competing characterizations of sex-dependent restrictions on dress and grooming is the same as the question of whether there exists any coherent, non-arbitrary basis for exempting such restrictions from the ambit of objectionable sex discrimination.
III. TWO DEFINITIONS
In the interest of avoiding potentially tendentious characterizations, I begin my analysis by offering a pair of definitions. In this article, I shall use the term "sex-dependent workplace restriction" to refer to workplace requirements or proscriptions, however they might be characterized, whose application or enforcement with regard to a particular employee is predicated on, or cannot be determined without consideration of, that employee's sex. (8) Thus, for example, a restriction that specifically instructed all and only female employees to conform to a certain dress requirement would obviously be a sex-dependent restriction. A policy that required all employees to wear "appropriate business attire" might also be a sex-dependent restriction to the extent that determinations of what was "appropriate" depended upon consideration of the sex of the subject employee. A policy that required all employees to wear a hat would be a sex-independent restriction. A requirement that short-haired employees wear caps while longhaired employees wear hair nets would also be sex-independent--even if, as a practical matter, this meant that the hair-net requirement applied only to female employees. (9) Similarly, an appearance code requiring all employees to keep their beards trimmed would be a sex-independent restriction, not a sex-dependent one, even though (presumably) it would affect only male employees, because its application to any employee would not require consideration of that employee's sex.
Second, I shall use the locution "workplace restriction on personal presentation" to refer to employment requirements and policies that restrict the manner in which an employee is permitted to present the surface of his or her face, head, hair, and body to others in the workplace. Thus, restrictions on personal presentation include all policies that traditionally are grouped under the rubric of "appearance standards" or regulations regarding "dress and grooming," such as policies governing workplace attire, uniforms, hair length, beards, jewelry, makeup and cosmetics, and so on. (10)
IV. INTENTIONALITY
Current employment discrimination law already provides a test that determines when an action that is susceptible to alternative characterizations should be regarded, for legal purposes, as differential treatment "because of" one of the factors that is excluded from consideration by Title VII, including sex. (11) We must view the action as discriminatory, even if a non-discriminatory characterization of the action is possible, when a forbidden consideration forms part of the intention or motivation of the actor who is alleged to have acted discriminatorily. (12) One might argue, therefore, that there is a perfectly straightforward way of deciding whether the employer in my opening hypothetical engaged in sex discrimination: If the employer acted with a discriminatory motive or intent, then we should regard the termination of the cross-dressing male employee as discriminatory. However, if the employer acted with no such motive or intent, then we should regard the termination as a non-discriminatory enforcement of a workplace dress code ("appropriate attire required") that applies equally to men and women alike.
To be sure, there is no denying that, under current approaches, the intention of the alleged discriminator is the nominal focus of the legal inquiry, at least in a disparate treatment action. (13) But if our purpose is to work toward a theoretical understanding of how to analyze sex-dependent workplace restrictions on personal presentation under the employment discrimination laws, to say that the classification of a particular presentational restriction as discriminatory or non-discriminatory depends on the employer's intent is like saying that negligence liability depends on the defendant's fault, or that criminal liability depends on mens rea. Accepting the truth of the general proposition does not help us move toward an understanding of the specific considerations that are relevant to the requisite analysis.
Suppose, for example, that my original hypothetical employer, after firing a male employee for wearing a frilly pink dress, were to concede that the decision to terminate the employee was motivated by a belief that it is inappropriate for men to wear dresses to work, and that it was relevant to--indeed, dispositive of--the termination decision that the employee was in fact a man. Would these admissions be sufficient to establish that the employer acted on a discriminatory motive?
If the answer were yes, it would be difficult to see how we could possibly avoid the conclusion that all adverse employment actions based on sex-dependent workplace restrictions on personal presentation constitute sex discrimination. For in every case in which adverse action is taken against a male (or female) employee on the basis of a judgment that the employee's personal presentation was inappropriate for a man (or woman) in the relevant workplace, it will be trivially true that the employer's action will have been based on an explicit consideration of the employee's sex. It will also be true that the employer would not have taken that same action if the employee's sex had not been taken into account. (14) This, arguably, would be...
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