San Diego Law Review

Library of Congress Authority File


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Employers use groom and dress policies to broadly regulate the appearance of employees, dictating all aspects from the most basic appearance requirements, such as cleanliness and proper attire, down to the minutest details, including hair style, nail length, and even lipstick color. However, when an employer differentiates between male and female employees in appearance policies, the employer runs the risk of violating Title VII, a federal statute that prohibits sex discrimination in the workplace. Title VII was enacted to eradicate the discriminatory treatment of men and women resulting from sex stereotypes, and to eliminate the traditional obstacles faced by women entering the workforce. The Supreme Court has held that Title VII prohibits an employer from differentiating between men and women in a wide variety of employment settings, including application qualifications, promotion decisions, and retirement plans, but has not yet addressed whether policies that regulate aspects of an employee’s appearance fall within the ambit of Title VII. In the absence of Supreme Court guidance, circuit courts have developed multiple, often conflicting tests to determine whether an employer runs afoul of Title VII when it imposes different appearance requirements upon male and female employees. This Comment proposes a comprehensive framework for analyzing groom and dress policies under Title VII that will ensure consistency among the circuits, remain faithful to Supreme Court precedent, and restore focus on the original intent of Title VII. Part II of this Comment introduces Jespersen v. Harrah’s Operating Co., a controversial Ninth Circuit opinion that illustrates both the myriad problems encountered in existing groom and dress tests as well as the advantages of this Comment’s proposed approach. Part III explores the Supreme Court’s broad interpretation of Title VII to prohibit both blatant and subtle forms of employment discrimination arising out of sex stereotypes. Despite this expansive precedent, many courts have utilized theories that impose limitations on the protections of Title VII against discriminatory groom and dress policies. For example, one of these tests is the mutability doctrine, which bars any consideration of appearance policies under Title VII by asserting that Title VII prohibits discrimination only on the basis of immutable characteristics. Another is the offensive stereotype analysis, which further limits the application of Title VII by allowing courts to impose or withhold statutory protection based on subjective views of the permissibility of certain gender stereotypes. The unequal burdens test also undercuts the strength of Title VII by only looking to the financial and temporal costs of complying with a groom and dress policy, thus failing to consider the psychological burden of being forced to conform to an oppressive sex stereotype. As Part IV of this Comment asserts, the mutability doctrine, the offensive stereotype analysis, and the unequal burdens test all serve to limit the effectiveness of Title VII by creating various exceptions and loopholes within the statute’s blanket prohibition against sex discrimination. Ironically, these theories often result in allowing employers to promulgate groom and dress policies that reinforce the very stereotypes and employment obstacles that Congress intended to eliminate with the passage of Title VII. Thus, in Part V, this Comment urges the Supreme Court to address the inconsistencies among the circuits by implementing a new, two-pronged approach to groom and dress policies under Title VII. This new framework rejects the mutability doctrine as a misinterpretation of Title VII language and Supreme Court precedent, but it retains and refines aspects of the offensive stereotype analysis and the unequal burdens test. The first step in the proposed approach asks the Court to consider whether the policy relies upon stereotypes that tend to reinforce gender subordination in the workplace, rather than simply focusing on whether the Court deems the policy subjectively offensive. The second step of the test requires the Court to engage in an expanded unequal burdens analysis by examining a broader variety of factors—including the financial, temporal, physical, and emotional costs of the policy—to determine whether the policy imposes a heavier burden on one sex over the other. This new approach remains faithful to legislative intent and Supreme Court precedent by addressing and eradicating the special barriers and disadvantages faced by women in the workforce. Properly applied, the two-pronged test harmonizes employee and employer interests by targeting policies that further gender inequality while still allowing employers to maintain reasonable discretion over groom and dress requirements.

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