Joel Dillard, P.A.

Representing Mississippi Workers

Sex discrimination in the workplace

Sex discrimination involves treating someone unfavorably based on whether that person is male or female. Conceptually this should be fairly straightforward: if you take a person that has been treated unfavorably, and ask what would have happened if their sex had been different, would this change anything? If so, the action should be illegal.

And for the most part this is true. For example, if an employer refuses to promote a woman because she is too assertive or brash, meanwhile praising similar qualities in her male colleagues, then it is clear that she is being stereotyped because she is a female, and that the stereotype is hurting her career. This is unlawful sex discrimination. Similar logic applies to feminine men, or people perceived as falling outside typical gender binaries for one reason or another.

So too, sexual harassment is a form of sex discrimination, because the comments, unwelcome sexual advances, requests for sexual favors, suggestions that sex is required to keep a job or gain a promotion, etc., are motivated in part by sex. Take the same employee and switch the sex and they are treated differently. ( Harassment does not have to be of a sexual nature, however, and it is also illegal to harass a woman by making offensive comments about women in general.)

But it isn't always that simple.

First, note that Congress made an exception for bona fide occupational qualifications - in other words, if the sex of the employee is itself essential to the work performed. They call this BFOQ, and it is the employer's burden to prove it - which makes sense, since this is clearly a somewhat rare exception to the general rule that work isn't sexed. Hooters, for example, somewhat famously qualifies for a BFOQ because they were able to convince the court that their business model involved selling sexual titillation by female waitresses to a straight male clientelle. This means Hooters can not only explicitly and deliberately discriminate against men, but can discriminate against women as well based on sex stereotyping to gratify patrons. Like it or not (and I don't), the Hooters case is probably a fair interpretation of what Congress meant in the statute in establishing a BFOQ exception.

Next are rules that indirectly hurt women's chances - for example, a requirement to be at least 5 feet 9 inches tall, which would exclude 95% of women and only 45% of men. (Census data) Even though this rule does not meet the test we described above for discrimination - after all, a 5.5 foot person is treated the same whatever the gender - the rule is still probably illegal. This is because the law recognizes that what may seem neutral on its face could have a serious real-world impact on the sexes. And so a rule or test like this is usually illegal unless the employer can show that the rule or test is actually related to a requirement to do the job. So, for example, a firefighter might need to lift or carry a certain amount of weight, but even though statistically women might be less likely to be able to do this than men, and even though sex isn't a BFOQ for firefighters, the strength test isn't illegal because it is needed for the job. But a height restriction might not be justified, because equipment may be reasonably adapted for shorter people, and so the adverse impact against women is not really necessary for the job and should be eliminated, even if it isn't intended to discriminate. I think the law in this area generally makes sense - though I would prefer lower proof standards for plaintiffs and stronger procedures and remedies.

But where things really start to fall apart is in the so-called sex plus cases. In these cases there is an explicitly sex-discriminatory rule with no job-related reason, and yet the courts say it is not discrimination. In the seminal case, Willingham, the court held that men could be required to wear their hair short, when no similar rule was imposed on women.

The hair rule at issue easily meets our prior definition of discrimination. If you submit two long-haired applicants identical except for their sex, they will be treated differently. It also seems to be a pretty clear case of sex-stereotyping.

But the courts have reframed this as discriminating among men on the basis of the length of their hair, and said it is not sex discrimination. This has been described as discrimination based on sex plus some additional attribute, and is not considered unlawful. The underlying motivation for the courts in deciding Willingham seems to be that it should be permitted for employers to require men and women to groom and dress differently. Why? The court's answer seems to be that the public expects women and men to look differently, and professional gooming standards are therefore different.

This is unsettlingly similar to the reasoning behind the black codes of segregation - and serves the same essential purpose. By mandating stereotypical appearance - just like unlawful expectations of stereotypical conduct - the employer is signaling distinct roles for employees based on their sex. Title VII was intended to unsettle and combat such discriminatory public standards, and to place people on an equal footing in the workplace regardless of sex, race, etc.

Indeed, if you apply the sex plus logic to any other protected category - dress codes for blacks, dress codes for the disabled, dress codes for foreigners, etc. - it becomes obvious that the court's reasoning is specious, and that the question is not whether this is discrimination or not, but whether this is a kind of discrimination the courts have decided they want to prevent. After all, there is no relevant difference in the text of the statute to justify treating sex plus cases as special, and yet that is what the courts have chosen to do.

In essence, the courts have suggested that gendered dress codes are generally not derogatory. This is both wrong and outside the court's competence. It is outside the court's competence because Congress already considered the matter and decided against discrimination itself, without inviting judicial inquiry into whether the discrimination is intended to be derogatory or not. And it is wrong because separate codes are inherently unequal, suggesting as they do unequal and often inapt gender roles.

As I see it, the employers are imposing gender stereotypes without any justification, and this is straightforward discrimination. So the length of hair, or style of skirts, or what-have-you, should be gender neutral to allow employees to make their own choices from within the available options. There is no BFOQ, no reason at all for a garden-variety retailer be requiring gender performances of these kinds from employees.

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