Trait discrimination as sex discrimination: An argument against neutrality

Title VII prohibits discrimination whereby women or men are denied employment opportunities because of their status as such. Much of the employment discrimination taking place today, however, targets not all women or men, but only those with particular traits or characteristics-for example, women who are aggressive or men who are effeminate. This Article addresses the question of when, if ever, "trait discrimination" is actionable sex discrimination under Title VU. The dominant response advocated by scholars has been to require employers to act in a rigid and formalistically sex-neutral manner toward their employees. If an employer allows female employees to wear dresses, the employer must allow male employees to wear dresses as well. To do otherwise is actionable sex discrimination. This Article suggests a new response to trait discrimination that returns to Title VH's original focus on ending status-based hierarchy. The power-access approach advocated in this Article treats trait discrimination as actionable sex discrimination only when it stems from gender norms and scripts that are incompatible with sex equality in the workplace. This Article contends, in contrast to most current scholarship, that rigid sex neutrality is neither required by Title VII nor socially desirable. Before the passage of the Civil Rights Act of 1964, many jobs in America were formally sex-segregated.1 Employers openly and unabashedly excluded women from desirable high paying jobs that were reserved for men.2 The story of Justice Sandra Day O'Connor's inability to find a law firm job other than as a legal secretary after graduating third in her class from Stanford Law School in 1952 is now well known and almost quaintly anachronistic.3 Her experience, however, was typical of the time.4 Indeed, private discrimination was in some cases required by state law. "By the mid-1960s 26 states prohibited women from working in certain jobs and 19 states had hours regulations for women workers."5 Women were statutorily excluded from jobs that required heavy lifting6 as well as from work as diverse as tending bar,7 shining shoes, and legislative service.8 Society viewed men as the primary labor market participants and wage earners. Society viewed women as peripheral market participants and supplemental wage earners seeking "pin money."9 It was in this social climate that Title VII of the Civil Rights Act of 1964 was passed. Much has been made of the fact that "sex" was introduced into the Civil Rights Act one day before its passage in the House by a Southern representative who strongly opposed the Act.10 Indeed, it is often said that the amendment was a last ditch attempt to kill the Act.11 While this may have been the motive of some of the amendment's sponsors, the push to include sex in the Civil Rights Act was not some spontaneous joke. It was the culmination of a 40-year effort to pass a constitutional amendment guaranteeing women equal rights.12 Statements made on the floor of the House by supporters of the sex discrimination amendment make clear that they intended the prohibition to end the blanket exclusion of women from jobs and to dismantle the sex-based hierarchy of the work world that such exclusion maintained.13 Title VII has been extremely effective at ending formal sex segregation.14 These days discrimination rarely takes the form of a per se refusal to hire women or men because of their sex-what I refer to as ontological discrimination.15 The discrimination that remains is more subtle, nuanced, and often far less categorical. An employer may be perfectly willing to hire women or men but may simply refuse to hire women or men with particular traits. 1 refer to this as trait discrimination. Trait discrimination may be either sex-neutral or sex-specific. An employer may, for example, simply have a neutral requirement against hiring anyone with a particular trait (e.g., a pierced tongue). Alternatively, an employer may find a particular trait disqualifying only in individuals of one sex (e. …