Vive La Difference? a Critical Analysis of the Justification of Sex-Dependent Workplace Restrictions on Dress and Grooming

Abstract:     
How is it possible that sex-specific workplace dress and appearance codes do not constitute sex discrimination? I argue in this article that the general doctrines of employment discrimination law do not themselves provide a principled basis for distinguishing sex-dependent workplace dress codes from other kinds of policies that would clearly count as sex discrimination, and that supplementary strategies that courts have used to carve out dress and grooming codes as an area of separate concern are either inconclusive or question-begging. I then consider whether the courts' seemingly sui generis approach to sex-dependent restrictions on dress and grooming can be justified on the grounds that they do not implicate the main concerns of equality that the laws forbidding sex discrimination embody. I conclude with a suggestion that the courts' current approaches to sex-based dress and grooming codes depend on a substantive claim that there is positive value in preserving a social state of affairs in which men and women enjoy economic equality but adhere to sex-dependent social norms in respect of their physical appearance.

Number of Pages in PDF File: 31

Keywords: Jespersen, dress, grooming, sex discrimination, equal treatment

Accepted Paper Series