Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination
Northwestern University School of Law
California Law Review, January 2004
Discrimination on the basis of sex in employment is illegal - usually. In cases in which employers contend that sex-based hiring is necessary to protect the privacy interests of their customers, however, and in cases in which employers contend that sex-based hiring is necessary to provide a particular type of sexual titillation for their customers, courts sometimes do allow employers to discriminate. This paper seeks to explain and defend why courts distinguish in the ways they do between permissible and impermissible forms of sex discrimination in employment.
Courts say that they allow sex discrimination in employment when it is necessary to preserve the "essence of the business." However, this paper shows that there is no plausible conception of business "essence" that can explain and make sense of the existing case law. In other words, the courts' rhetoric simply cannot explain their actual decisions.
Instead, courts' far greater permissiveness toward sex discrimination in privacy cases than in sexual titillation cases can be better understood on two other grounds. First, the courts' divergent treatment of these two kinds of cases reflects a standard liberal concern about group-based equality of opportunity. Second, the courts' decisions reflect a distinctly non-liberal hierarchy in which preferences for privacy are given priority over desires for sexual titillation because the former are seen as being more important and integral to an individual's sense of self.
Moreover, within sexual titillation cases, courts rigidly bifurcate the work world between sex businesses (wherein sex discrimination is permissible) and non-sex businesses (wherein sex discrimination is impermissible), and they simply do not permit "plus sex" businesses (those that sell sexual titillation along with some other good or service) to exist. This paper argues that although these decisions are consistent with liberal equality of opportunity concerns, they are better justified on non-liberal grounds. These decisions promote women's intellectual and rational development by protecting them from the dangers of ubiquitous social sexualization. Indeed, women's intellectual development and achievement does seem to require, more so than men's, the preservation of social contexts in which they cannot be explicitly sexualized.
Accepted Paper Series
Date posted: September 12, 2003
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