Chapter Six Expressive Freedom: A Short Discussion of a Value That Is Not There
Chapter Six Expressive Freedom: A Short Discussion of a Value That Is Not There
Abstract and Keywords
This chapter explores the extent to which courts’ expanding protection for gender nonconformists in the workplace reflects, as judicial rhetoric often suggests, a judicial commitment to freedom of gender expression more generally. The chapter concludes that courts are not, in fact, committed to protecting freedom of gender expression in the workplace and, indeed, that such unfettered freedom is both theoretically incoherent as a form of sex discrimination protection and practically unworkable.
IN the previous chapters, I sought to identify the work being done by several traditional and nontraditional antidiscrimination values in courts’ recent decisions protecting gender nonconformists in the workplace. In this chapter, I consider another value—freedom of gender expression—which some scholars argue is also driving the recent case law. I show that despite judicial rhetoric to the contrary, courts are not in fact committed to protecting freedom of gender expression through antidiscrimination law, nor should they be.
Workplace fit demands—requirements that employees possess and present the “right” corporate image—have become a focus of contemporary antidiscrimination scholarship. Scholars argue that such demands are gendered because they require employees to embrace traditional conceptions of (p.138) masculinity and femininity and that such demands are racial because they embody white middle-class norms of dress, speech, appearance, and behavior.1 Increasingly scholars and activists argue in favor of a broad liberty-based protection for all workplace expressions of gender and racial identity.2 With respect to gender expressions, for example, Dylan Vade urges legal and political changes to make society “more inclusive and protective of the gender galaxy in order to ensure that every person’s self-identified gender is respected, [and] that every person can express their gender freely.”3 Franklin Romeo encourages courts to recognize “that all people have the inherent right to determine their own gender identity and expression.”4
Some scholars have gone further, asserting that such protection is already required by existing antidiscrimination law. They argue that the prohibition on sex stereotyping as first announced by the Supreme Court in Price Waterhouse v. Hopkins and then restated by the Sixth Circuit in Smith v. City of Salem encompasses a right to free gender expression. As one scholar argues, Smith guarantees to all individuals the right “to control their own gender expression.”5 Another contends that Smith “preserve[s] liberty of self-identity in our 21st Century world.”6 Yet despite suggestive judicial rhetoric to the contrary, such an interpretation of the law’s scope or underlying values is certainly wrong as a matter of legal reality.
The Case Law
Courts’ regular denial of protection to workers challenging sex-based grooming codes belies the claim that courts are (p.139) committed in any serious or systematic way to freedom of gender expression in the workplace or that the prohibition on sex stereotyping demands such freedom. Indeed, after Price Waterhouse, as before, courts routinely permit sex-based grooming requirements that prescribe how employees may express their gender at work. For example, courts uphold workplace grooming codes requiring that male, but not female, workers keep their hair short.7 Similarly, courts uphold grooming requirements prohibiting male, but not female, employees from wearing earrings, and, quite famously in Jespersen v. Harrah’s Operating Co., requirements that female, but not male, employees wear makeup.8 Indeed, courts reaffirm such requirements even in cases in which they rely on sex-stereotyping rhetoric to check other kinds of conformity demands. In Nichols v. Azteca Restaurant Enterprises, Inc., for example, the Ninth Circuit used the sex-stereotyping rhetoric of Price Waterhouse to hold that discrimination against a male worker because of his perceived effeminacy was a form of sex discrimination.9 Nonetheless, the court emphasized that its “decision does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards.”10
Although Price Waterhouse and Smith have not in fact signaled a new judicial commitment to free unfettered gender expression in the workplace, there is a narrower expressive rights principle that focuses on protecting expressions of group, rather than individual, identity that has been a goal of some feminist scholarship as well. I consider next whether this narrower principle has gained any traction in the case law.
(p.140) Rather than protecting all personal and idiosyncratic expressions of gender identity, the narrower principle would protect only those expressions that are culturally group associated in some way. It would, for example, protect female workers who choose to wear traditionally feminine attire to work, such as skirts or frilly blouses, from being forced to dress in more masculine attire—at least without proof from their employer that feminine attire directly impaired job performance. More significantly, the principle would call for a reconceptualization of traditionally male jobs so as to protect and accommodate traditionally feminine attributes like empathy and relationship building. A law firm accustomed to hiring only highly aggressive and competitive litigators would, for example, be forced to consider whether individuals who were cooperative problem solvers might in fact be equally effective. Rather than protecting gender nonconformists, this narrow conception of expressive freedom would in effect protect job nonconformists—those who seem because of group identity to perform their job duties in a way different from that envisioned by the employer.
Feminists have championed protection of this sort for decades, both as a way to elevate the feminine and as a way to improve the status of women.11 Professors Kathryn Abrams and Laura Kessler, for example, have sought greater protection for a culturally feminine caregiving norm. Both have argued that employers should be obligated to restructure jobs and workplaces so as to accommodate women’s caregiving work.12 Professor Mary Anne Case has argued for the protection of feminine styles in the workplace, whether performed by female or male workers. “Discrimination against the feminine,” (p.141) she notes, “is likely to have a disparate impact on women” and, as a result, “should be permitted only if job-related and justified by business necessity.”13
Despite Case’s argument that feminine expressions by both women and men should be protected, one could argue that culturally associated traits merit protection only when performed by in-group members because outsider performance represents only an imitative and inauthentic version of the trait. Interpreted in this way, the narrow expressive rights principle is consistent with courts’ refusal to protect men wishing to express traditionally feminine traits at work—such as earrings and long hair. It is likewise consistent with the Ninth Circuit’s refusal to protect Darlene Jespersen’s desire to express a traditionally male attribute at work—an unmade-up face.
The narrow principle is, however, wholly inconsistent with courts’ traditional and continued deference to employer demands that women leave their cultural femininity at the workplace door. In the famous case of EEOC v. Sears, Roebuck & Co., for example, the court did not question the employer’s conventionally masculine worker demands despite their exclusionary effect.14 Sears, the Equal Employment Opportunity Commission alleged, had engaged in a pattern or practice of excluding women from commission sales positions.15 The EEOC presented evidence showing that women were significantly underrepresented in commission sales jobs. Sears defended by arguing that lack of interest by women, rather than discrimination, caused the underrepresentation. Commission sales jobs, according to Sears’s Retail Testing Manual, required a “‘special breed of cat,’ ”: someone who “possesses a lot of drive and physical vigor, is socially dominant, and has an (p.142) outgoing personality.”16 Sears looked for candidates who possessed “aggressiveness,” “assertiveness,” and “competitiveness” and had a “social or extraverted personality.”17 Women, Sears argued, were simply less interested in the positions than men. In concluding that women’s lack of interest, rather than Sears’s discrimination, was to blame, the court did not pause to consider whether Sears’s masculine-oriented job description and hiring criteria may have affected women’s interest in the positions. Nor did it require Sears to demonstrate that such masculine attributes were in fact necessary for successful job performance. Far from protecting culturally feminine traits and attributes, the court used them to justify women’s exclusion.18
In Wislocki-Goin v. Mears the plaintiff, who worked at a juvenile detention center, sued for sex discrimination after she was fired for wearing her hair down and wearing excessive makeup to work in violation of her employer’s unofficial dress code demanding the “‘Brooks Brothers look.’ ”19 The Seventh Circuit affirmed the district court’s judgment in favor of the employer and echoed the lower court’s deferential acceptance of the employer’s grooming demands. Rather than requiring the employer to show that the plaintiff’s feminine style actually impeded her job performance, the court simply presumed the reasonableness of the employer’s grooming requirements.20
Price Waterhouse did not weaken such deference. Indeed, in Price Waterhouse itself the Supreme Court saw no problem with the masculine job demands placed on prospective partners. As Mary Anne Case has noted, “[T]here is little indication … that the Court would have found it to be sex discrimination if a prospective accounting partner had instead been told to (p.143) remove her makeup and jewelry and to go to assertiveness training class instead of charm school.”21 It was the demand of femininity by Price Waterhouse at the same time that it devalued it that was the problem, not its devaluation of femininity standing alone.
Employers’ freedom to define jobs in ways more consistent with masculine than feminine work styles continued in Chi v. Age Group, Ltd.22 The plaintiff, Theresa Chi, had worked long hours coordinating imports for her employer before taking maternity leave for the birth of her second child. At the end of her leave, Chi told her employer that she would like to return to work on a part-time basis and would no longer be able to work overtime. Asserting that full-time work with regular overtime was required, Chi’s employer deemed her unqualified for her position and fired her. In granting summary judgment against Chi on her sex discrimination claim, the court concluded that she had not even made out a prima facie case of discrimination, because she could not show she was “qualified for her position.”23 As Laura Kessler noted in her discussion of the case, “the court did not consider the possibility that Age Group might work out a flexible schedule with Chi” so that she might be “qualified” if only her job were reconceptualized.24 Rather than protecting culturally feminine caregiving norms, the court uncritically accepted the employer’s male-normative workplace demands.
Courts’ failure to endorse a principle of workplace gender freedom is not surprising. True gender freedom is both (p.144) conceptually complex and practically costly. At its most expansive, it requires protection for all forms of gender expression—those that are stereotypical, atypical, and idiosyncratic, those that are persistent, and those that are transient. Gender becomes whatever people say it is. Yet as gender becomes solely a matter of self-identification, the distinction between gender and personal idiosyncrasy becomes one of mere nominalism, and all conduct becomes potentially entitled to protection.
Title VII, however, prohibits discrimination on the basis of sex and gender,25 not discrimination based on a whole host of other traits and attributes.26 This distinction, to be meaningful, requires a definition of gender more stable than simple self-declaration. External criteria for identifying gender expressions are necessary, and two seem most plausible. First, gender expressions might be defined and limited to those commonly associated with masculinity or femininity. Gender would, in other words, be defined by those expressions that are socially group identified. Alternatively, gender expressions might be limited to those that are deemed integral to one’s gender identity as determined, not by self-proclamation, but by external judge or expert. Versions of both approaches have also been argued for in the race context.27
Yet, once gender is defined using external or objective criteria, there will be some forms of expression experienced by the actor as gender expressions that do not satisfy the category requirements. Protections will necessarily be limited to a prescribed set, and some forms of gender expression will be defined out of the box. In particular, idiosyncratic or impermanent gender expressions are unlikely to be recognized and (p.145) protected. Herein lies the core tension: complete gender freedom is incompatible with any kind of stable and workable definition of gender, but Title VII requires such a definition.
To make this tension more vivid, consider the following hypothetical. Imagine that instead of objecting to a requirement that she wear makeup at work, Darlene Jespersen objected to a requirement that she smile at customers. She objected not on the grounds that smiling would violate her gender identity but on the grounds that smiling inauthentically at strangers would violate her self-image and sense of self. Jespersen’s challenge to the smile-at-customers rule would clearly lose under Title VII. Title VII does not provide blanket protection for personal expression. Indeed, it does not provide protection even for those forms of personal expression that are consistent with technical job requirements. Title VII does not protect against job irrational treatment; it protects only against treatment based on certain protected characteristics.
Imagine next that Jespersen had objected to the smile-at-customers rule on the grounds that it violated her gender identity. Smiling at strangers, Jespersen might have argued, is a particularly feminine attribute signaling deference and servility. Doing so would conflict with her more masculine and assertive gender identity. Under a broad gender freedom principle, Jespersen’s refusal to smile would now be protected under Title VII. So too, of course, would be any attribute that Jespersen labeled or identified as an expression of her gender.
Without some guidelines for what differentiates an expression of gender from an expression of personal taste, Title VII would be left without form, predictability, or limit. With (p.146) guidelines regarding gender in place, however, plaintiffs, like my second hypothetical Jespersen, will likely find their idiosyncratic expressions of gender unprotected. It is impossible to structure protection in a way that both relies on the category of gender and simultaneously transcends any conventional understanding of it.
Moreover, gender freedom, in either its broad or narrow version, would also impose dramatic costs, and constraints, on both employers and society more generally. The most conventional justification for Title VII’s prohibition on race and sex discrimination is that these are job-irrelevant hiring criteria.28 Race and sex per se are not relevant to (though they certainly may be highly correlated with) whether one possesses the range of skills and attributes necessary for (almost all) jobs.29 Such is not the case with gender. Many jobs are distinctly gendered. That is, they demand a set of traits and attributes that are typically recognized as masculine or feminine. Prohibiting employers from requiring conduct that is traditionally gendered would force employers to restructure jobs so as to fit employees’ preferred gender expressions—such accommodations would be costly and, in some cases, impossible.
Consider, for example, three jobs with traditionally feminine role demands—flight attendant, elementary school teacher, and paralegal. Flight attendants are (or at any rate were, pre-9/11) expected by employers to be warm, friendly, helpful, and at least somewhat deferential to customers.30 Elementary school teachers are expected to be sensitive to children’s needs, nurturing, and empathetic.31 They are also expected to be collegial and cooperative in their dealings with (p.147) other teachers and administrators.32 Paralegals are expected to be organized and analytical. They are also expected to be deferential toward and emotionally supportive of the lawyers with whom they work.33
These jobs differ significantly from those with traditionally masculine role demands, such as litigation associate, debt collector, and Marine. Litigation lawyers are “expected to be tough, aggressive, and intimidating toward their opponents.”34 Bill collectors are expected—indeed, encouraged—to be aggressive and intimidating toward debtors.35 Marines are expected to be strong, aggressive, and emotionally detached.36
Certainly, some jobs seem gendered for no reason other than social convention. The role of secretary, for example, came to include both caretaking and sexual titillation only after the job became dominated by women.37 Such expectations were not part of the job when it was performed predominantly by men. As women came to dominate the profession, its norms changed so as to essentially preclude further male occupation.38
Other jobs seem gendered for reasons more intrinsic to the job itself. Nurturing treatment, for example, probably is important to the healthy development of young children. A nurturing disposition may then be required of elementary school teachers for reasons independent of the fact that most elementary school teachers are female.39 The same may hold true of the role demands of Marines. The core functions of a Marine may simply be performed better by one who is physically strong, aggressive, and unemotional. Men may dominate the Marines because they have these qualities to a higher degree than women, but the role demands themselves may be (p.148) defined this way for reasons independent of men’s past or present dominance.
Jobs may be gendered not only in terms of the attributes they seek but also, more simply, in terms of the clothes and appearance they require. Construction, like other forms of physical labor, for example, often requires not just a kind of masculine strength but also the adoption of masculine dress and grooming styles in order for the jobs to be performed safely. An employer who is unable to force a femininely gendered construction worker to tie her hair back and wear pants to work will be unable to safely assign the worker to a range of duties. An employer who is unable to force a femininely gendered bill collector to scowl and talk in an aggressive manner may have to pair the feminine worker with a more masculine coworker, in a good-cop/bad-cop kind of ploy, in order for the worker to be effective. An employer who cannot force a masculinely gendered elementary school worker to smile and coo at his charges may not be able to create the kind of warm and nurturing atmosphere in which children thrive. In all cases, the costs to employers, and society more generally, of true gender freedom for workers would be significant.
Courts have not, in short, been persuaded by scholars’ arguments that Title VII, to be meaningful, must protect freedom of gender expression in the workplace. Instead, restraints on gender expression seem to be viewed as just another workplace constraint—to be added to the list of many other controls—that can legitimately be expected in the workplace. (p.149) While it is true that courts have expanded protection for some gender nonconformists, a commitment to gender freedom—for either individuals or groups—is not the motivation. Gender-nonconforming expressions are protected only when other antidiscrimination values are implicated. The values pushing the boundaries of sex discrimination coverage are the more traditional ones discussed in previous chapters, most notably a concern about group subordination and status harms, as well as a rather covert perfectionist distrust of sexuality. Free gender expression itself is not an antidiscrimination demand.
(1.) See generally Katharine T. Bartlett, “Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality,” 92 Michigan Law Review 2541, 2543–44 (1994) (describing and explaining courts’ frequent allowance of substantially different dress and appearance standards for female and male employees); Mary Anne Case, “Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence,” 105 Yale Law Journal 1, 66–68 (1995) (arguing that sex-specific dress codes constitute sex discrimination under Title VII); Karen Engle, “The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII,” 76 Texas Law Review 317, 340 (1997) (“Courts have found that it is legal for employers to rely on what they see as dominant societal rules about how men and women should dress. Although courts have long held that Title VII prohibits employers from relying on stereotypes about men and women, courts in these cases overtly and unapologetically have allowed them to do just that.”). With regard to race see generally Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights (New York: Random House, 2006), 131 (describing the racial covering demands imposed on minority workers in order to conform to white assimilationist workplace norms); Devon W. Carbado & Mitu Gulati, “Working Identity,” 85 Cornell Law Review 1259, 1262, 1294 (2000) (describing the “identity work” that minority employees must do to comply with white cultural workplace norms); Barbara Flagg, “Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking,” 104 Yale Law Journal 2009, 2029 (1995) (describing as “transparently white decision-making” the process by which employers define workplace rules and expectations according to white cultural norms); Tristin K. Green, “Work Culture and Discrimination,” 93 California Law Review 623, 646 (2005) (questioning why workplace cultures “define acceptable and favored behavior along a white, male norm”); Camille Gear Rich, “Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII,” 79 New York University Law Review 1134, 1194–95 (2004) (describing employer’s shift from facially discriminatory policies to facially neutral ones that prohibit racially associated behaviors and attributes).
(2.) See, e.g., Devon Carbado, Mitu Gulati, & Gowri Ramachandran, “The Jespersen Story: Makeup and Women at Work,” in (p.225) Employment Discrimination Stories, ed. Joel Wm. Friedman (New York: Foundation Press, 2006) 105, 132; Julie A. Greenberg, “The Gender Nonconformity Theory: A Comprehensive Approach to Break Down the Maternal Wall and End Discrimination against Gender Benders,” 26 Thomas Jefferson Law Review 37 (2003); Colleen Keating, “Extending Title VII Protection to Non-Gender-Conforming Men,” 4 Modern American 82 (2008).
(3.) Dylan Vade, “Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That Is More Inclusive of Transgender People,” 11 Michigan Journal of Gender & Law 253, 264 (2005).
(4.) Franklin H. Romeo, “Beyond a Medical Model: Advocating for a New Conception of Gender Identity in the Law,” 36 Columbia Human Rights Law Review 713, 753 (2005).
(5.) See Thomas Ling, “Smith v. City of Salem: Title VII Protects Contra-Gender Behavior,” 40 Harvard Civil Rights–Civil Liberties Law Review 277, 285 (2005).
(6.) Johnny Lo, “Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004),” 11 Washington & Lee Race & Ethnic Ancestry Law Journal 277, 282 (2005).
(7.) See, e.g., Tavora v. N.Y. Mercantile Exchange, 101 F.3d 907, 908 (2d Cir. 1996) (holding that a male employee fired for not complying with his employer’s short-hair requirement for men could not state a claim for sex discrimination); Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685, 685 (2d Cir. 1976) (holding that “requiring short hair on men and not on women does not violate Title VII”); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976); Knott v. Missouri Pacific Railroad Co., 527 F.2d 1249, 1252 (8th Cir. 1975); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1091–92 (5th Cir. 1975); Baker v. California Land Title Co., 507 F.2d 895, 898 (9th Cir. 1974); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C. Cir. 1973).
(8.) See, e.g., Kleinsorge v. Eyeland Corp., No. CIV. A. 99-5025, 2000 WL 124559, at *2 (E.D. Pa., Jan. 31, 2000) (holding that a grooming code allowing female but not male employees to wear earrings did not violate Title VII); Capaldo v. Pan American Federal Credit Union, No. 86 CV 1944, 1987 WL 9687, at *2 (E.D. N.Y., Mar. 30, 1987) (holding that a grooming code prohibiting men but not women from (p.226) wearing earrings did not constitute sex discrimination); Pecenka v. Fare-way Stores, Inc., 672 N.W.2d 800, 804 (Iowa 2003) (holding in response to a sex discrimination claim brought by a male employee who was fired for refusing to stop wearing an earring that “personal grooming codes that reflect customary modes” of distinctly gendered grooming do not constitute sex discrimination); Macissac v. Remington Hospitality, Inc., No. 03-P-1015, 2004 WL 1541807, at *2 (Mass. App. Ct., July 9, 2004) (holding that enforcement of a grooming code prohibiting male but not female employees from wearing earrings did not constitute sex discrimination); Lockhart v. Louisiana-Pacific Corp., 795 P.2d 602, 604 (Or. Ct. App. 1990) (holding that a grooming code prohibiting male but not female employees from wearing facial jewelry did not constitute sex discrimination). See also Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1103 (9th Cir. 2006) (en banc).
(9.) Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 874–75 (9th Cir. 2001).
(10.) Nichols, 256 F.3d at 875 n.7.
(11.) As Lucinda Finley asked more than twenty years ago: “Rather than blaming women and their nature for their underrepresentation in the high paying jobs, why not reexamine the jobs and their values?” Lucinda M. Finley, “Choice and Freedom: Elusive Issues in the Search for Gender Justice,” 96 Yale Law Journal 914, 939 (1987) (reviewing David L. Kirp, Mark G. Yudof, and Marlene Strong Franks, Gender Justice (Chicago: University of Chicago Press, 1986)). See also Kathryn Abrams, “Gender Discrimination and the Transformation of Workplace Norms,” 42 Vanderbilt Law Review 1183, 1223–25 (1989) (“If women with children are to attain equality in the workplace, then we must challenge the notion of a natural or pre-ordained line dividing work and family…. Employers will have to determine which jobs or tasks can be shared or accomplished through flexible scheduling, granting fringe benefits to part-time workers, and re-educate clients to greater confidence in the new arrangements.”); Laura T. Kessler, “The Attachment Gap: Employment Discrimination Law; Women’s Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory,” 34 University of Michigan Journal of Law Reform 371, 372–73 (2001) (“Women, more so than men, perform the unpaid family caregiving work within our society…. The American workplace and discrimination laws governing (p.227) employment have yet to address seriously this profound existential difference between men and women with regard to caregiving, despite women’s substantial presence in the paid labor force for more than two decades.”); Case, “Disaggregating Gender from Sex and Sexual Orientation,” 4 (“Discrimination against the feminine is likely to have a disparate impact on women, who are disproportionately likely to be feminine and not masculine; it should be permitted only if job-related and justified by business necessity.”).
(14.) EEOC v. Sears, Roebuck & Co., 628 F. Supp. 1264 (N.D. Ill. 1986).
(15.) Sears, Roebuck & Co., 628 F. Supp. at 1295.
(16.) Sears, Roebuck & Co., 628 F. Supp. at 1290.
(17.) Sears, Roebuck & Co., 628 F. Supp. at 1290. In addition, Sears gave most candidates a test that asked such questions as: “Do you have a low pitched voice?” “Do you swear often?” “Have you played on a football team?” Ibid. at 1300 n.29.
(18.) Sears, Roebuck & Co., 628 F. Supp. at 1324.
(19.) Wislocki-Goin v. Mears, 831 F.2d 1374, 1376–77 (7th Cir. 1987).
(20.) Wislocki-Goin, 831 F.2d at 1379–80.
(22.) Chi v. Age Group, Ltd, No. 94 CIV. 5253 (AGS), 1996 WL 627580 (S.D. N.Y., Oct. 29, 1996).
(23.) Chi, 1996 WL 627580, at *5.
(25.) See Smith, 378 F.3d at 571 (asserting that Price Waterhouse “held that Title VII’s prohibition of discrimination ‘because of … sex’ bars gender discrimination”); Balance v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005) (“Title VII prohibits employers from discriminating against employees on the basis of sex or gender”).
(26.) See 100 Cong. Rec. 7213 (1964) (explaining the limitations of Title VII to prohibit difference in treatment or favor based on race, color, religion, sex, and national origin and noting that employers’ use (p.228) of other criteria or qualifications for employment is not affected). See also Hill v. St. Louis University, 123 F.3d 1114, 1120 (8th Cir. 1997) (“[The ADEA and Title VII] serve the narrow purpose of prohibiting discrimination based on certain, discreet [sic] classifications such as age, gender, or race. These statutes do not prohibit employment decisions based upon poor job performance, erroneous evaluations, personal conflicts between employees, or even unsound business practices.”)
(27.) See, e.g., Juan Perea, “Ethnicity and Prejudice: Reevaluating ‘National Origin’ Discrimination under Title VII,” 35 William & Mary Law Review 805, 833 (1994) (proposing that Title VII protect against discrimination based on ethnicity meaning protection of the “physical and cultural characteristics that make a social group distinctive, either in group members’ eyes or in the view of outsiders”); Gowri Ramachandran, “Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercings,” 66 Maryland Law Review 11, 19 (2006) (“Personal appearance choices play a unique and crucial role in the development and revision of a simultaneously public and personal identity … [and the] law can create a zone in which to better empower individuals to form and reform identity promoting a dynamic rather than static culture and society.”).
(28.) For a discussion of different definitions of the antidiscrimination norm, see Mark Kelman, “Defining the Antidiscrimination Norm to Defend It,” 43 San Diego Law Review 735, 736 (2006).
(29.) For instances in which sex is job relevant, see Kimberly A. Yuracko, “Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination,” 92 California Law Review 147 (2004).
(30.) See Arlie Russell Hochschild, The Managed Heart: Commercialization of Human Feelings (Berkeley: University of California Press, 1983), 8 (“For the flight attendant, the smiles are a part of her work.”); Jennifer L. Pierce, Gender Trials: Emotional Lives in Contemporary Law Firms (Berkeley: University of California Press, 1995), 52 (“Flight attendants’ friendliness takes the form of deference: their relationship to passengers is supporting and subordinate.”).
(31.) See Jim Allan, “Male Elementary Teachers: Experiences and Perspectives,” in Doing “Women’s Work”: Men in Nontraditional Occupations, ed. Christine L. Williams (Thousand Oaks, CA: Sage Publications, 1993), 123–26.
(34.) See Pierce, Gender Trials, 2. As Pierce describes, the lawyers in her study “boast about ‘destroying witnesses,’ ‘playing hard-ball,’ and ‘taking no prisoners’ and about the size and amount of their ‘win.’” Ibid. at 60.
(36.) See Christine L. Williams, Gender Differences at Work: Women and Men in Nontraditional Occupations (Berkeley: University of California Press, 1989), 1.
(37.) Rosemary Pringle, “Male Secretaries,” in Doing “Women’s Work”: Men in Nontraditional Occupations, ed. Christine L. Williams (Thousand Oaks, CA: Sage Publications, 1993), 133 (describing how secretaries came to be defined in the twentieth century in “familial and sexual terms”). See also Rosabeth Moss Kanter, Men and Women of the Corporation (New York: Basic Books, 1977), 69 (“The secretarial job involved the most routine of tasks in the white-collar world, yet the most personal of relationships.”).
(38.) Such preclusion was primarily by gender—the requirement of feminine deference weeding out the more traditionally masculine—and only to a lesser degree by sex—to the extent that sexual titillation was also being demanded.
(39.) It certainly may be, however, that the gendered aspects of the role are reaction qualifications rather than technical qualifications. See Alan Wertheimer, “Jobs, Qualifications, and Preferences,” 94 Ethics 99, 100 (1983) (explaining that “reaction qualifications refer to those abilities or characteristics which contribute to job effectiveness by causing or serving as the basis of the appropriate reaction in the recipients. Technical qualifications refer to all other qualifications (of an ordinary sort)”). It may be, in other words, that being soft of voice and touch is important for elementary school teachers only because of the positive response such treatment elicits from young subjects. Yet for teachers of young children, being able to elicit happy and positive student reactions may be the most important qualification for the job.