Misapplying Equality Theories: Dress Codes at Work

This article provides a new perspective on Title VII caselaw concerning employer-mandated, sex-specific dress codes. With few exceptions, courts have held that employer dress codes do not constitute sex discrimination even when they expressly differentiate based solely on an employee's sex. In other contexts, courts readily acknowledge that facially sex-based practices and policies are presumptively unlawful under Title VII. When it comes to dress codes, however, nearly the opposite is true. Courts generally presume a sexbased dress code to be permissible, and the burden falls heavily on the employee to show, beyond the mere fact of differential treatment, some additional disparity or harm, such as that the particular requirements at issue are more burdensome for women than for men or that they perpetuate stereotyped views of women as inferior or as sexual objects. This pervasive attitude of judicial laissez-faire toward sex-based dress codes is increasingly anomalous in the wider context of sex discrimination caselaw, and yet shows no signs of abating. This Article argues that this doctrinal blind spot is an unintended-and unfortunate-by-product of "second generation" equality theory, which downplays formal equality and focuses on anti-subordination principles as the purpose of equality law. While affirming the continuing importance and viability of second generation equality theory in the areas of affirmative action and disparate impact, I argue that an over-emphasis on antisubordination theories has skewed dress code caselaw and prevented courts from seeing the discriminatory harms caused by sex-specific dress requirements. Prescriptively, the article suggests ways for litigants to refocus courts on first generation principles in dress code cases. This includes strategies for identifying the harm caused by the formal labeling of difference, a harm ignored in cases of sex discrimination but well understood for race. Such a t Associate Professor, Western New England School of Law. University of Chicago, J.D. 1992; Wellesley College, A.B. 1985. The author is also Senior Counsel at Gay & Lesbian Advocates & Defenders. I wish to thank Erin Buzuvis, Tina Cafaro, Beth Cohen, Lauren Carasik, Jamison Colbum, Susan Donnelly, Martha Ertman, Taylor Flynn, Anne Goldstein, Julie Greenberg, Leora Harpaz, Richard Juang, Andrea Kramer, Shannon Minter, Barbara Noah, and Kate Strangio for discussing and reviewing this Article. I am also indebted to Jay Sexton for invaluable research assistance and editing. Copyright © 2008 by the Yale Journal of Law and Feminism 354 Yale Journal of Law and Feminism [Vol. 19:353 litigation strategy would be more effective than pursuing the currently popular sex stereotyping theory, which has largely failed to expose the detrimental impact of sex-based dress codes on employees. IN TRO D U C TIO N 355 I. FOUNDATIONAL PRINCIPLES OF THEORY AND PRACTICE 358 A. Anti-Differentiation v. Anti-Subordination 358 1. Anti-Differentiation Principles 359 2. Rejection of the Anti-Differentiation Principle and Development of Anti-Subordination Theory 360 B. Courts' Legal Analysis in Dress Code Challenges 362 II. THE PROBLEMS WITH DRESS CODES 364 A. Gender-Based Dress Codes Have a Serious Negative Impact on Many People even if Others Experience Them as Benign 364 B. Courts' Errors in Applying Second Generation Theories in D ress Code Challenges 368 C. The Dress Code Cases Highlight Some Important Limitations of Second Generation Theories 369 D. Why Differentiation Is Itself Problematic: The Sex-Tag E xam p le 370 III. Two MODELS OF SEX DISCRIMINATION: A BASIC IDEA AND A POTEN TIAL M ISSTEP 372 A. Straightforward Sex Discrimination 374 B . Sex Stereotyping 377 IV. RECENT CASELAW OFFERS SOME IMPORTANT INSIGHT 379 A. Jespersen v. Harrah 's Operating Co 379 B . Schroer v. B illington 385 C . L essons D raw n 388 C O N CLU SION 389 2008] Misapplying Equality Theories 355