Only girls wear barrettes: dress and appearance standards, community norms, and workplace equality.

• Author: Bartlett, Katharine T.
• Position: Visions of Equality: The Future of Title VII

[My son, Jeremy,] naively decided to wear barrettes to nursery school. Several times that day, another little boy insisted that Jeremy must be a girl because "only girls wear barrettes." After repeatedly insisting that "wearing barrettes doesn't matter; being a boy means having a penis and testicles," Jeremy finally pulled down his pants to make his point more convincingly. The other boy was not impressed. He simply said, "Everybody has a penis; only girls wear barrettes."(1)

In the thirty-year history of Title VII, the meaning of workplace equality for women has undergone a vast number of changes. Many of these changes represented gradual, incremental steps in the elimination of barriers to women's employment such as height and weight requirements,(2) rules against hiring mothers with small children,(3) and the denial of overtime work to women.(4) Other changes in the meaning of workplace equality required major shifts in understanding about the nature of sex-based discrimination and came only after scholars and advocates laid substantial theoretical and political groundwork. Recognition that pregnancy-based exclusions constitute discrimination "based on sex"'(5) and the extension of Title VII to prohibit workplace environments that subject women to lewd remarks and unwanted sexual advances(6) are examples of these more radical transformations.

Despite the progress made under Title VII in eliminating barriers to women's access to equal employment opportunities, the Act has never kept up with the expectations many have had for it. At any given time, there seems to be a significant gap between what the law finds unacceptable under Title VII and what scholars and advocates contend the Act should prohibit. A gap between a law's reach and the aspirations of those who seek to use it to accomplish substantial societal reform is a common enough phenomenon, but this is small consolation, and critics look for explanations. In the case of Title VII, one explanation seems to lie in an unnecessary judicial reliance on community norms in determining what the Act requires. For example, privacy expectations of patients in nursing homes or hospitals have been held to justify an employer's sexbased hiring policies,(7) even though those expectations are themselves based on gender-role stereotypes.(8) Another example can be found in hostile environment sexual harassment cases, in which community norms have come into play in evaluating whether a sexual advance at the workplace was "unwelcome" or whether harassing conduct was sufficiently "pervasive" to violate the Act.(9)

The example of judicial reliance on community norms on which this essay focuses concerns employer dress and appearance requirements. Employers have traditionally assumed substantial prerogatives with respect to the dress and appearance of their employees, imposing burdens on women that are different from those imposed on men. For example, women may be required to wear skirts of a certain length(10) or high-heeled shoes,(11) to conform to different weight criteria than men,(12) or to wear makeup.(13) They may be fired if they have unladylike facial hair(14) or if they wear their hair in a style that may offend customers.(15) They may be required to have sexually alluring figures or to wear sexually provocative clothing,(16) or they may be made to downplay their sexuality.(17) Men, in turn, may be required to wear ties(18) or to keep their hair cut short,(19) or may be prohibited from wearing "women's" jewelry.(20) These requirements pose a special challenge to conventional equality concepts and illustrate especially well the difficulties of rooting out workplace rules and practices that are based on well-settled community norms.

For the most part, courts have rationalized dress and appearance requirements by reference, directly or indirectly, to community norms. Based on these norms, courts may excuse dress and appearance requirements they deem trivial in their impact on employees, or neutral in affecting men and women alike, or essential to the employer's lawful business objectives. These rationalizations have been criticized by scholars, who argue that reliance on community norms constitutes an acceptance or legitimation of the very gender stereotypes that Title VII was established to eliminate.(21) The proposed solution is that community norms be put off limits as a basis for justifying discriminatory standards and that mandatory dress and appearance codes be found unlawful under Title VII.

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of the community that has produced it. I argue, further, that eliminating dress and appearance discrimination against women in the workplace is not as simple a matter as the critics suggest. As I explain in Part 1, women are disadvantaged by dress and appearance expectations beyond those formally mandated by employers. Strategies to eliminate mandatory codes fail to address this disadvantage. Moreover, it is not clear that mandatory dress and appearance codes are always a source of disadvantage to women; in some instances, they may even be beneficial. Accordingly, in evaluating dress and appearance codes, my focus is not on whether they are mandatory but on whether, mandatory or not, they further gender-based disadvantage in the workplace. Because what constitutes disadvantage, as well as what it takes to reduce that disadvantage and even what reducing disadvantage means, can only be determined in context, in relation to a particular set of circumstances, I conclude that the evaluation of equality claims under Title VII requires more, not less, attention to community norms.

In Part II, I review how courts, in evaluating dress and appearance restrictions under Title VII, have relied on community norms in an incorrect way, as objective, external criteria that tend to legitimate most restrictions. In Part III, I explore the implications of a more complex, interactional view of community norms as provisional givens, which are neither fixed for all time nor easily changed by simple legal fiat. Within this framework, I urge an abandonment of the judicial practice of justifying dress and appearance requirements by their correspondence to existing community norms. As noted above, however, I advocate not a rejection of community norms altogether but a more deliberate focus on them, as an important reference point both for determining whether workplace rules and practices disadvantage women and for defining which discriminatory rules - for strategic as well as legal reasons - might have to be allowed as essential to businesses that, however objectionable from a sex-equality perspective they might be, society is not yet prepared to prohibit.

One premise of this essay is that no version of gender equality can accomplish substantial social change unless it is familiar enough to take root in the very conditions of subordination it is expected to eliminate. This familiarity is especially important with respect to matters affecting personal identity, such as dress and appearance,(22) about which sharp breaks and shifts in understanding are difficult if not impossible to achieve. I leave the details of this argument for another day(23) but mention it here to give further context to why I think it should not be surprising that legal reform affecting gender-role stereotypes, like legal reform in other areas, often reincorporates the kinds of defects it is designed to eliminate.(24) The law shapes, and is shaped by, community norms, in an ongoing series of negotiations over form and function, over ideals and reality, and over difference, disadvantage, and the difference between the two. In this process of negotiation, only those versions of equality that incorporate past understandings, as well as new insights, will be stable enough to form the basis of even better future versions.(25) Viewing community norms as a central part of this process rather than as an evil that can or should be ignored reflects this premise.

1. The Feminist Critique of Dress and Appearance

   For feminists, dress and appearance norms raise both autonomy and equality concerns. As an autonomy issue, the problem is that dress and appearance norms impede women from making their own choices and restrain them from expressing their true identity.(26) As an equality issue, the problem is that dress and appearance expectations subordinate women to men. For example, women's dress and appearance demands are much more complex than men's, involving more frequent changes in fashion, more time and effort to assemble, and a greater premium placed on having different clothes for different occasions and on not being seen in the same outfits too frequently.(27) Women's standards are harder to attain than men's and matter more.(28) Substantively, women's dress and appearance expectations objectify women and construct them as inferior, submissive, and less competent than men. Throughout European history, men's clothing has emphasized strength and competence, while women's clothing since the early nineteenth century has conveyed the message that its wearers are fragile, helpless, debilitated, armored, hobbled, decorative, nonthreatening, useless, and immobile.(29)

   Employer dress requirements codify these inequities, channeling women's self-presentation according to someone else's...