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Student Project: Appearance Policies as Sex Discrimination in the Workplace: Statutes and Regulations

A guide to Title VII and sex stereotyping.

What is sex stereotyping?

Sex stereotyping is a form of discrimination "because of sex" covered within Title VII. 

For example, when an employer acts on the basis of a belief that a biological woman cannot be aggressive, or that she must not be, he has acted on the basis of gender stereotypes.  

Legislative History and Regulations

Exceptions...

  • Personal appearance challenges have been successful when:

(1) Courts have found plaintiffs had suffered other harms such as a violation of equal opportunity, sexual harassment, or when employers did not satisfy the equal burdens test;

(2) Transgender plaintiffs are exceptional because they suffer a special harm understood through diagnostic category of gender dysphoria. 
 

What is a valid Title VII claim?

  • "In order to assert a valid Title VII claim for sex discrimination, a plaintiff must make out a prima facie case establishing that the challenged employment action was either intentionally discriminatory or that it had a discriminatory effect on the basis of gender."
  • Title VII prohibits both intentional discrimination and also the effects of discriminating polices on individuals because of their sex. 
  • Once an employee is able to establish a valid prima facie Title VII discrimination claim, the burden will then shift to the employer to prove a legitimate, non-discriminatory purpose for the adverse employment action. 
  • Therefore, It is unlawful discrimination because of sex when employers maintain one employment standard for females and another for males, UNLESS the employer demonstrates the applicability of the narrow exception known as a “bona fide occupational qualification.”
  • Congress created a “bona fide occupational qualification” (BFOQ) exception to the statute to apply to employers who find an otherwise prohibited discriminatory action "reasonably necessary to the normal operation of that particular business or enterprise." 
  • Courts have long rejected sex and sex appeal as legitimate business necessities subject to the BFOQ exception to Title VII.
  • There have been no known Title VII challenges to the occupations of legal prostitution or stripping. Arguably, any profession where the use of a particular body part is needed for the sexual gratification of another person would succeed within the BFOQ exception for gender specificity.

What is the difference between sex, gender, & sexuality (orientation)?

Appearance and Grooming Standards as Sex Discrimination

  • Appearance standards or grooming polices may be subject to Title VII claims.
  • A person fails to conform to certain gender stereotypes either through behavior or through appearance.
  • The primary thrust of Title VII is to prompt employers to "discard outmoded sex stereotypes posing distinct employment disadvantages for one sex.” 
  • The main test to apply in sex discrimination claims is the equal burdens doctrine. In applying an equal burdens analysis, generally, courts have held that sex-based appearance policies do not violate Title VII - if both sexes are equally burdened by a policy, that policy can be upheld.