However, there may ultimately be no logical way to reconcile decisions that prohibit employers from requiring women to wear revealing outfits and others that permit employers to require them to wear makeup,20 or decisions that prohibit penalizing a woman for being insufficiently feminine and others that permit penalizing a man for being insufficiently masculine.21 In addition, the increasing judicial acceptance of the sex stereotyping theory of sex discrimination under Title VII is in substantial tension with recent cases that insist that sex-differentiated dress and grooming requirements that "merely"22 conform to existing social gender norms do not amount to impermissible sex discrimination. Because dress is so crucial a characteristic in sexually dimorphic species, and because it is so closely tied to sexual attractiveness, choice, and power dynamics, employers should be prohibited from requiring women to dress in gender normative ways that reflect those traits even if they believe that such dress codes do not amount to intentional sex stereotyping.223 Where, as here, so many threads come together to demonstrate that sex differences in dress are likely to affect the way that individuals are treated by others, employers should not be permitted to mandate differences that implicate notions of attractiveness or power.
Julie A. Seaman,
The Peahen’s Tale, or Dressing Our Parts at Work,
14 Duke Journal of Gender Law & Policy
Available at: http://scholarship.law.duke.edu/djglp/vol14/iss1/14