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Joanna L. Grossman

Sex-Stereotyping and Dress Codes Under Title VII: Why Courts Can't Get it Right


Tuesday, March 3, 2009

In 1989, the U.S. Supreme Court held in Price Waterhouse v. Hopkins that Title VII – the main federal anti-discrimination statute -- prohibits employers from penalizing employees for failing to conform to the gender stereotypes associated with their sex. Yet, two decades later, courts continue to show ambivalence in sex-stereotyping cases.

More specifically, courts continue to uphold employers' dress and grooming policies that differentiate by sex and, in the course of doing so, demand that their employees adhere to the stereotypical appearance standards assigned to their sex. A recent federal court ruling, in Creed v. Family Express Corporation, involving a transsexual employee, illustrates – and repeats – the mistake of many other courts that have refused to see these policies as a form of illegal sex-stereotyping.

Price Waterhouse v. Hopkins: The Supreme Court's Anti-Sex-Stereotyping Case

In Price Waterhouse, the plaintiff, Ann Hopkins, was denied partnership in an accounting firm, at least in part because she was too aggressive, cursed like a truck driver, and did not walk, talk, or dress in a feminine manner. In short, she was a woman who acted like a man, and for that, she was dealt a career-stunting blow.

Ruling on Hopkins's sex discrimination lawsuit, the Court held that Title VII forbids employers from discriminating against an employee for failing to live up to gender role expectations. You can't, in other words, punish a female employee for not being feminine enough. That sort of gender policing, the Court ruled, violates Title VII. In an oft-quoted line, the majority observed that: "[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associate with their group."

How far does this reasoning reach? Ideally, it would reach as far as necessary to serve one of the central aims of anti-discrimination law: to promote equal employment opportunity through the eradication of sex-stereotyped decision-making. The reach of Price Waterhouse has been tested primarily in three types of cases: (i) cases of gay men or lesbians challenging harassment or other discriminatory behavior; (ii) cases of women challenging sex-differentiated dress or grooming codes; and (iii) cases of transsexuals challenging all varieties of employment policies and decisions. Cases in each category, as well as cases that involve intersecting categories, reveal both the limits and the untested waters of the law's protection against sex stereotyping.

Dress Codes and Title VII: How Courts Have Ignored the Statute's Mandate

To begin, Title VII plainly prohibits employers from discriminating on the basis of sex. Other than for a very small subset of hiring decisions, the statute contains no defenses to a claim of facial discrimination -- that is, discrimination that is pursuant to a policy that expressly differentiates persons based on sex. And it contains no exception for dress codes.

Yet courts, in case after case, have upheld the right of employers to maintain sex-specific dress and grooming codes. Men must wear their hair short; women can wear theirs long. Men must wear business suits; women must wear dresses. Women can have piercings; men cannot. Men cannot wear makeup; women not only can, but in some cases are required to.

The decisions permitting employers to maintain such policies plainly violate Title VII's ban on sex-based employment policies. But courts simply mouth platitudes about the employer's prerogative to run its business as it sees fit, or about society's generally accepted principles of grooming, while giving license to these discriminatory policies.

The Jespersen Case: The Ninth Circuit Rules on a Dress Code Requiring Women to Maintain a Highly Sexualized Appearance

Perhaps the most objectionable case in this area is Jespersen v. Harrah's, a 2006 case in which an en banc panel of the Ninth Circuit upheld by a vote of 7-4 the casino's sex-differentiated grooming policy under Title VII. The policy was startling in the degree to which it required women to maintain a highly sexualized feminine appearance.

Employees at Harrah's were required to wear the same uniform, and all were required to be "well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform." In addition, men and women had sex-specific grooming requirements. Male employees had to wear their hair short, trim their fingernails and refrain from wearing makeup or nail polish. Female employees had to wear their hair "teased, curled, or styled," as well as wear stockings, colored nail polish, and specific types of facial makeup outlined by an "image consultant." Employees were made up by the image consultant, photographed, and held to the "personal best" image standard each day at work.

Darlene Jespersen, a longtime, well-regarded bartender at the casino, objected to the requirements for female employees. She was not in the habit of teasing her hair or wearing makeup and claimed that being forced to do so interfered with her chosen identity and constituted sex discrimination.

Jespersen's claim seemed promising, since the Ninth Circuit had applied Price Waterhouse broadly in two prior cases brought by gay men claiming they were harassed for being too effeminate. In those cases, which I have written about in a previous column, the court correctly treated gender policing – punishing gay men for failing to act according to expectations of masculinity -- as a form of unlawful sex discrimination.

But Jespersen was foiled in her attempt to take a similar stand against forced femininity. The court sidestepped Price Waterhouse by simply noting that any stereotype being applied did not inhibit Jespersen's ability to do the job. "The only evidence in the record to support the stereotyping claim is Jespersen's own subjective reaction to the makeup requirement," the court claimed. The court ruled, in effect, that sex-differentiated grooming and dress codes are permissible under Title VII as long as they do not impose unequal burdens on men and women.

But even under that standard, it seems puzzling why Jespersen did not prevail. It was obvious that women, even apart from any identity or stereotyping objection, bore more of a burden in complying with Harrah's "personal best" policy. It is neither expensive nor time-consuming for men to keep their hair and nails short and to not apply makeup or nail polish. Women, on the other hand, were burdened with the expense and time involved with hair teasing, nail polishing and the application of heavy facial makeup every single day. The court refused to take judicial notice of this difference, however, and claimed, unpersuasively, that the record did not support a claim of unequal burden.

The court in Jespersen did a tremendous disservice to the cause of sex equality. Dress and grooming codes may seem insignificant, but they are not established in a vacuum. They reflect, instead, societal stereotypes and prejudices about what men and women should look like. These stereotypes punish both men and women who do not happen to fit traditional expectations of masculinity and femininity.

Meanwhile, dress and grooming codes also reinforce a gender hierarchy, in which a working woman is evaluated on both appearance and job performance. The requirement that women must wear leg-revealing business dresses or skirts, for instance, is not innocuous. (Nor is the burden of a working woman's need for a costly, varied wardrobe when a man can get away with a few nearly-identical business suits.) Dress codes serve to emphasize gender differences, rather than to highlight similarities of skill, credentials, or effort. The refusal of courts to confront these cases head-on – including the refusal to apply precedent that is obviously applicable – has only served to perpetuate existing gender hierarchies.

Transsexuals and the Right Against Sex-Stereotyping

In the context of dress and grooming codes, then, Price Waterhouse has not been given full effect. What has it meant in cases brought by transsexuals? In this context, Price Waterhouse should plainly have been a watershed case. Gender non-conformity is the essential trait of transsexuals. Thus, a precedent of refusing to allow employers to penalize employees for failing to live up to the gendered expectations assigned to their sex – as the Court did in Price Waterhouse – should logically protect transsexuals.

But has it? The results in post-Price Waterhouse transsexual discrimination cases have admittedly been mixed. Several courts have simply refused to apply the sex-stereotyping theory to transsexual plaintiffs, suggesting that their transsexual status deprives them of a "sex" altogether and thus dispenses with the usual protections against sex discrimination. But the more recent cases tend to rule in favor of transsexual plaintiffs, by applying Price Waterhouse to claims of sex stereotyping.

For example, in 2004 the Sixth Circuit ruled, in Smith v. City of East Salem, in favor of a transsexual firefighter who claimed he had suffered employment discrimination because of his gender identity disorder. The court relied on Price Waterhouse to hold that discrimination against a male who assumes a female identity is a form of unlawful gender policing.

Moreover, a federal district court in the District of Columbia joined the Sixth Circuit with its recent ruling in Schroer v. Billings, which I have written about in a prior column. The Congressional Research Service withdrew an offer of employment to Diane Schroer, once it learned that she was in the process of transitioning from male to female status. When Schroer sued, the court ruled that Schroer was a victim of illegal sex-stereotyping, though not in the usual way transsexuals might experience. The supervisor who reacted negatively to her disclosure of transsexualism did not seem to care that Schroer was a man taking on the appearance of a woman-- something a "real" man would not do. Rather, the supervisor admitted that her concern was that Schroer did not look feminine enough – that she instead looked like a man dressed as a woman. Thus, it was not the disjunction between anatomy and appearance that bothered the supervisor, but Schroer's failure, as a woman, to live up to the expectations for her assumed gender.

The court ruled, citing both Price Waterhouse and Smith, that transsexuals are protected against sex-stereotyping – regardless of which way it runs ("too much" or "not enough") – just as other plaintiffs are. Title VII simply does not permit, in this court's view, punishment of gender non-conformity in the workplace.

The Recent Ruling in Creed v. Family Express Corporation

This history brings us directly to the recent case with which I began this column: Creed v. Family Express Corporation. As the cases I cited above illustrate, the post-Price Waterhouse caselaw is inconsistent -- upholding dress and grooming codes that transform employees into walking stereotypes, while at the same time taking a nuanced and often correct view of the same stereotyping problem when faced by transsexuals. Creed presents both issues together, a juxtaposition that reveals the incoherence of prior case law even more clearly.

Amber Creed was born a male, but suffers from gender identity disorder – a condition in which her gender identity does not correspond to her birth sex. She was hired by Family Express to work as a sales associate. When she interviewed, she had a masculine demeanor and appearance, but after beginning work, she began to assume a more feminine look. Over time, she began to wear her hair longer and in a more feminine style and to wear nail polish and facial makeup. Like other employees, she wore the required unisex uniform – a polo shirt and slacks.

Creed received positive performance evaluations and had been selected as "Greeter of the Month" on several occasions. Ultimately, however, Creed's employment was terminated. She was told that all employees were required to follow the company's dress and grooming code, both the general portions and the sex-specific ones. At Family Express, men were required to maintain "neat and conservative hair that is kept above the collar" and forbidden from wearing makeup or jewelry. Employees were told that this code was a "non-negotiable part of employment," with no exceptions.

As part of her preparation for sexual reassignment surgery, Creed assumed a traditionally feminine appearance. But she was informed by a manager that she could no longer present herself in a feminine manner at work. She was given 24 hours to conform her appearance. Instead, she terminated her employment because of the ultimatum. She then filed a lawsuit alleging that she lost her job because the company perceived her "to be a man who did not conform with gender stereotypes associated with men in our society."

Is it unlawful sex stereotyping to punish an anatomical male for assuming a feminine appearance? Oddly, the federal district court in Indiana that ruled on Creed's claim said it certainly could be -- but not if the discrimination is embodied in a formal dress and grooming code, with sex-specific requirements that do not impose unequal burdens on men and women.

The court refused, unlike some courts, to exclude transsexuals altogether from protection under Title VII. But it effectively accomplished the same exclusion by allowing Family Express to hide behind its dress and grooming policy.

The Creed court articulated the correct standard under Title VII: Employment actions taken "because of sex" are unlawful. It also correctly cited Price Waterhouse for the proposition that "Title VII doesn't allow an employer to treat employees adversely because their appearance or conduct doesn't conform to stereotypical gender roles." Then, it appropriately cited a case from the U.S. Court of Appeals for the Seventh Circuit, Doe v. City of Belleville, for the proposition that a man cannot lawfully be harassed because "his voice is soft, his physique is slight, his hair long, or because in some other respect he exhibits masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave."

Yet, despite citing these precedents with approval, the Creed court ultimately rejected the claim of unlawful sex stereotyping. It held that penalizing Creed for failing "to embody sexual stereotypes" is a prohibited purpose, but that penalizing her for "breach of the grooming policy" is a legitimate one. It held, ultimately, that no reasonable jury could find that she was the victim of illegal stereotyping, since, apart from her noncompliance with the grooming policy, there was no proof that the employer acted "because of sex."

Case Law Should Evolve to Recognize that Dress Codes, Too, Can Constitute Illegal Sex Stereotyping

The Creed court is not the first to misunderstand the nature of a sex stereotyping claim after Price Waterhouse. But its convoluted reasoning in a case that involves both a transsexual employee and a sex-specific grooming code shows the true incoherence of cases in this area.

Courts ought to take Price Waterhouse on its face, which means refusing to allow employers to rely on sex stereotypes when crafting policies or making employment-related decisions – whether or not those policies are deemed "dress codes" or are applied case by case without formal company recognition or based on the biases of individual managers. Isn't codifying bias in a policy as bad or worse, from a sex discrimination perspective, as applying it case by case?

Transsexual employees would certainly benefit from a more honest and fair assessment by courts of these dress-code claims. So would women like Darlene Jespersen who simply wish to be assessed on the basis of the work they do, not on their hair and makeup.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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