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Article Excerpt
I. INTRODUCTION
Employers seeking to enhance their corporate brand or to foster a professional business environment frequently mandate that employees adhere to personal appearance requirements while at work. These requirements often regulate everything from dress and grooming habits to personal hygiene. Though appearance codes are generally based on stereotypical assumptions about how men and women are supposed to look and act, courts tend to acknowledge their validity out of deference to employers' business judgment. (1) Thus, employers are permitted under the law to require male employees to be clean shaven and to have short hair, (2) to ask male employees to wear suits and ties, (3) and to require female employees to wear skirts, dresses, or even high-heeled shoes and makeup. (4) Employers can also lawfully prohibit visible tattoos, (5) body piercings, unconventional hairstyles such as dreadlocks, cornrows, and braids, (6) and impose weight requirements. (7)
Although many courts treat employer-mandated appearance codes as "legally insignificant" and have long tolerated them, (8) the weight of literature and theory on the subject, as well as the intensity and frequency with which employees challenge them through litigation, (9) indicate that seemingly trivial dress codes can actually have important implications for autonomy and gender equality in the workplace. Far from trivial to some people, dress codes present the dual problem of preventing some employees from expressing their core sense of gender identity, while simultaneously reinforcing hidden prejudices embedded in social norms.
Under the widely-adopted "unequal burdens" test from Frank v. United Airlines, a policy that has different grooming and appearance requirements for men and women is permissible, as long as it imposes equal burdens on males and females and does not limit the employment opportunities of only one sex. (10) Under this test, affirmed by the Ninth Circuit as recently as April 2006, (11) if a dress code is equally offensive to men and women, it will still be permissible since it does not discriminate against only one sex. Sex-specific appearance codes requiring, for example, men to wear ties and women to wear skirts, both disadvantage individuals who diverge from prescribed, gender-based stereotypes of appropriate appearance and affirm gendered distinctions that devalue women. (12) Nonetheless, under Frank's unequal burden test, if such dress codes are applied evenly to men and women, they are generally upheld.
In recent years, courts have been increasingly willing to recognize that harassment of people who fail to conform to stereotypical gender roles constitutes proscribed discrimination based on sex. (13) Mandating conformity to the gender paradigm through compulsory appearance codes similarly penalizes individuals who fail to conform to stereotypical norms and perpetuates the existence of traditional gender identity and behavioral norms that devalue women, feminized men, and sexual minorities. Using principles from sexual harassment law as a model for the development of dress code law, I argue that in some cases, even dress codes that equally burden men and women may constitute either gender identity or gender expression discrimination--or both--and thereby violate Title VII of the Civil Rights Act. (14)
In sexual harassment law, courts have grappled with the "equal opportunity harasser" problem. (15) Formalistically following the letter of Title VII, which requires that discrimination be "because of sex" for a discrimination claim to be actionable, many courts over the years have held that if an employer harasses both men and women, the conduct does not rise to the level of sexual harassment because both sexes are treated equally. (16) Such holdings are based on the idea that without comparative evidence showing differential treatment of men and women, harassing conduct that targets both sexes cannot be found to violate Title VII. Despite some courts' continuing adherence to this rigid notion of discrimination that requires comparative evidence, many courts have rejected the equal opportunity harasser defense, allowing for the possibility of actionable sexual harassment of some women and some men in the same workplace by the same employer. (17)
Since Title VII does not define "because of sex" and the Supreme Court has left open the possibility of various formulations, courts have been able to find ways around the causation hurdle presented in equal opportunity harasser cases, ranging from bypassing discussion of the "because of sex" requirement altogether to espousing a broader meaning of the term "sex." The best-reasoned cases and commentary, noting the absurdity of a rule that provides an incentive for a defendant to harass members of both sexes in order to create a defense to sexual harassment, (18) generally examine individual plaintiffs' claims separately. This approach considers whether the conduct directed at an individual was based on that individual's sex, gender, or failure to conform to gender stereotypes, without engaging in a direct comparison with the treatment of employees of the opposite sex.
Applying the unequal burdens test to appearance codes presents a challenge similar to the equal opportunity harasser conundrum: even if applied relatively equally to men and women, sex-specific dress codes can be oppressive and discriminatory to members of both sexes. They perpetuate power paradigms harmful to both men and women and penalize individuals who deviate from social norms. Importing interpretations of Title VII developed from the equal opportunity harasser doctrine to dress code cases--which also fall under the purview of Title VII--would allow courts to focus on the sex-based underpinnings of employer dress codes that construct women as generally inferior to men and the harm that dress codes present to individuals who deviate from accepted gender norms, without requiring comparative evidence of unequal burdens to both sexes.
Part II of this Article sets forth the state of the law dealing with employer-mandated appearance and dress codes by examining both the types of plaintiffs who challenge dress codes and the nature of the typical challenges. It also analyzes the unequal burdens test employed by courts to resolve those cases. Part III examines the development of the law surrounding the equal opportunity harasser. This Part delves into the ambiguities inherent in the "because of sex" language of Title VII and the various ways in which courts have circumvented this hurdle when a supervisor harasses both men and women.
Part IV suggests ways in which the same lines of analysis can be employed in cases involving mandatory appearance codes. Specifically, this Part exposes two flaws in the unequal burdens test and proposes two alternate approaches. Drawing from the equal opportunity harasser doctrine, the proposed approaches are better suited to the arena of dress codes and are more consistent with the substantial body of existing Title VII sex discrimination law. The first approach would use an individualized analysis that considers the harm each individual plaintiff experiences from sex-specific dress codes, without requiring comparative evidence. This approach would emphasize the intangible harm imposed on women by dress codes that have roots in negative stereotypes about a woman's role in the workplace, as well as the harm to men that arises from the same negative stereotypes that construct an image of appropriate "masculine" appearance that not all men meet. The second approach would conceive of "sex" in its broadest, most meaningful sense, encompassing not just biological sex but also gender, gender expression, and gender identity. Drawing from the growing body of law on gender identity and expression discrimination, this approach would extend the inquiry beyond comparing the burden imposed by sex-specific dress codes on men and women as biological classes to comparing the burden imposed on men and women who fail to conform to community-imposed norms related to sex and others. This Article ultimately concludes that if the well-reasoned law rejecting the equal opportunity harasser defense were applied to sex-specific dress codes, such appearance mandates would no longer be permitted.
II. THE LAW SURROUNDING APPEARANCE AND DRESS CODES
Dress and appearance issues usually fall under Title VII of the Civil Rights Act of 1964, which makes it "unlawful for an employer ... to discriminate against any individual with respect to ... terms, conditions or privileges of employment ... because of such individual's race, color, religion, sex, or national origin." (19) Gender-specific dress codes are clearly terms and conditions of employment within the meaning of Title VII. (20) Even though they may amount to sex discrimination in violation of Title VII in some cases, they are more often accepted as a legitimate business decision, even when based on assumptions and expectations about gender differences. (21)
Initially, courts held that reasonable dress and grooming requirements which regulated mutable characteristics of both sexes--such as clothing, hair, cosmetics and jewelry--did not violate Title VII. In contrast, appearance codes seeking to regulate immutable characteristics--such as sex, race or national origin--were generally not permissible. (22) Under this regime, issues arose when appearance standards regulating mutable characteristics were gender-specific. Under the slightly broader unequal burdens test, such standards are generally upheld as long as they are comparable in terms of conventional societal custom and do not impose a greater burden on one sex over the other. (23) For example, women can be sanctioned for wearing too much makeup where male employees are also required to dress conservatively. (24) Additionally, grooming codes for men are more likely to be upheld than similar codes for women, most likely because they tend to be less demeaning than grooming codes for women. (25) Thus, courts have permitted prohibitions of jewelry for men, but not women, (26) and regulations regarding men's hair length and facial hair, as long as these requirements were meant to protect the company's business image. (27)
There are, however, some distinct limitations. When a dress code is applied solely or more stringently to women, it is more likely to be struck down. Thus, employers cannot require only women to wear a uniform (28) or contact lenses, (29) prohibit tattoos on women but not men, (30) or have different weight requirements for men and women, if one is more burdensome to meet than the other. (31) Further, dress codes requiring women to wear "skimpy" or sexy uniforms have been held to constitute gender discrimination if that uniform is likely to invite sexual harassment. (32) In EEOC v. Sage Realty, for example, female lobby attendants in an office building were required to wear a poncho with snaps at each wrist but otherwise open on the sides, and were prohibited from wearing a shirt, blouse, or skirt under the outfit. (33) The court struck down the dress code, holding that requiring women to wear the uniform, which was "short and revealing on both sides [such that] her thighs and portions of her buttocks were exposed," (34) created a hostile working environment under Title VII sexual harassment law.
Even facially discriminatory policies, however, will be upheld according to the language of Title VII if there is a bona fide occupational qualification (BFOQ). (35) To constitute a BFOQ, the discrimination must relate to the employee's ability to do her job, not just the success of the business based on an actual or perceived customer preference. (36) Accordingly, it is generally permissible for an employer to make an employment decision based on gender, religion, or national origin where "religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." (37) The BFOQ defense is also generally available in age discrimination cases, (38) though race can never constitute a BFOQ. (39)
In April 2006, the Ninth Circuit upheld the unequal burdens test, finding that a gender-specific grooming code did not violate Title VII. In Jespersen v. Harrah's Operating Co., (40) a female employee of Harrah's Casino claimed that the employer's "Personal Best" grooming code violated Title VII. Female bartenders at Harrah's were required to wear makeup, stockings, and colored nail polish, and to wear their hair teased, curled, or styled, while male employees were prohibited from wearing makeup or colored nail polish and were required to maintain short haircuts and neatly trimmed fingernails. (41) Jespersen found these requirements so inconsistent with her gender identity that she refused to comply with them. She advanced two arguments to support her refusal to wear the required makeup. First, she argued that the policy failed Frank's unequal burdens test because the financial cost of purchasing makeup, together with the time it takes to apply it, imposed a heavier burden on women than any burden imposed on men. (42) She also argued that the policy forced her to conform to sex stereotypes, in violation of Title VII, stating that it "made her feel sick, degraded, exposed, and violated," and "'forced her to be feminine' and to become 'dolled up' like a sexual object." (43) She alleged that it "interfered with her ability to be an effective bartender ... because it 'took away [her] credibility as an individual and as a person.'" (44)
The court held that Harrah's rules were not more burdensome for women than for men, who had to maintain short haircuts and neatly trimmed nails, (45) and therefore did not violate the "unequal burdens" test articulated in Frank. (46) Further, the court held that the employer's rules "d[id] not require Jespersen to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender." (47) The en banc majority emphasized that "[t]his is not a case where the dress or appearance requirement is intended to be sexually provocative, and tending to stereotype women as sex objects." (48) Rather, Jespersen was simply required to wear a uniform covering her entire body designed for both male and female employees. Accordingly, the court found that the policy showed no "discriminatory or sexually stereotypical intent on the part of Harrah's." (49)
Three dissenting judges argued for the inclusion of less tangible factors such...
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