Private Employer Dress Codes and Laws Against Sexual Orientation and Gender Expression Discrimination: The Normative Stereotype Exception Should Not Survive

Abstract

Title VII prohibits sexist hiring and employment policies unless the sexism is justified by business necessity. However, courts allow policies that facially transgress Title VII if the policies do not impose significant obstacles to employment opportunity on one sex relative to the other and do not perpetuate any invidious stereotypes that Title VII was meant to counteract. These judicial emendations to Title VII allow sexist social norms, the very norms that Title VII may indeed have been meant to subdue, to worm their way back into employment law.

Some states and cities have moved beyond Title VII and enacted laws prohibiting discrimination on the basis of sexual orientation and gender. I argue that these laws vitiate the interpretations of Title VII, and thus prohibit many policies that Title VII allows. The result is that employers subject to local laws like New York City's may have to relax or abandon many aspects of their dress codes. Employers will have to identify a business necessity and will not be able to rely on societal expectations.

Keywords: sex discrimination, gender discrimination, sexuailty and the law, dress codes, employment discrimination, Title VII