Who Wears the Pants? Everyone Who Wants To: Expanding Price Waterhouse Sex Stereotyping to Cover Employer-mandated Sex-differentiated Dress and Grooming Codes in the Eighth Circuit

JurisdictionUnited States,Federal
CitationVol. 99
Publication year2021

99 Nebraska L. Rev. 769. Who Wears the Pants? Everyone Who Wants To: Expanding Price Waterhouse Sex Stereotyping to Cover Employer-Mandated Sex-Differentiated Dress and Grooming Codes in the Eighth Circuit

Who Wears the Pants? Everyone Who Wants To: Expanding Price Waterhouse Sex Stereotyping to Cover Employer-Mandated Sex-Differentiated Dress and Grooming Codes in the Eighth Circuit

Comment [*]


I. Introduction .......................................... 770

II. The Federal Judicial System and Employer-Mandated Sex-Differentiated Dress and Grooming Codes Under Title VII .............................................. 771

III. Sex Stereotyping and Price Waterhouse ................ 775
A. The Supreme Court's Adoption of Sex Stereotyping Analysis .......................................... 775
B. Price Waterhouse's Anticipated Effect on Employer-Mandated Sex-Differentiated Dress and Grooming Codes ............................................. 777
C. Price Waterhouse's (Lack of) Effect on Employer-Mandated Sex-Differentiated Dress and Grooming Codes ............................................. 780

IV. Eighth Circuit Precedent Regarding Employer-Mandated Sex-Differentiated Dress and Grooming Codes ................................................. 786

V. Using Price Waterhouse Sex Stereotyping Theory to Remedy the Title VII Blind Spot in the Eighth Circuit . 792

VI. Conclusion ............................................ 795



In November of 1938, Helen Hulick arrived in a Los Angeles court to testify against two burglary suspects. [1] However, Judge Arthur S. Guerin sent Hulick home, ordering her to return in a dress, rather than the pants she was wearing. He warned that if she "insist[ed] on wearing slacks again [she] w[ould] be prevented from testifying because that would hinder the administration of justice." [2] When Hulick returned the next day, again wearing pants, Judge Guerin held her in contempt of court and sentenced her to five days in jail. Though Hulick's contempt citation was eventually overturned by the appellate division, freeing Hulick to wear pants to court, [3] the episode illustrated commonly held views about women's apparel and place in society. [4]

Up until the 1970s, courts assumed women's proper roles were domestic and maternal, and "regularly uph[eld] sex-based distinctions under the logic of protecting women's domesticity, maternal bodies, and sexual morals." [5] Supreme Court Justice Bradley once expressed that "[t]he constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood." [6]

Congress challenged these assumptions when it passed Title VII of the Civil Rights Act of 1964. Though the Act was initially intended to combat discrimination in employment on the basis of race, Congress made the "last-minute addition of 'sex' to the forbidden grounds of race, color, national origin, and religion." [7] The passage of Title VII opened the floodgates to sex discrimination litigation, and whole categories of work that had only been available for one gender now presented opportunities for both men and women. [8] "Extreme acts of employment discrimination have diminished" since the passage of Title VII; however, more subtle forms of prejudice remain, including dif-


ferent dress and grooming requirements for men and women in theworkplace. [9]

This Comment explains how employer-mandated sex-differentiated dress and grooming codes have become the "Title VII blind spot" [10] and argues that this could be remedied in the Eighth Circuit by extending the Supreme Court's sex stereotyping doctrine as applied in Price Waterhouse v. Hopkins. [11]


Though the Supreme Court has not specifically addressed Title VII's application to employee dress and grooming policies, [12] it has discussed the Congressional intent behind Title VII and analyzed the text of Title VII as a whole. Under Title VII, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment," or "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individ-


ual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex." [13]

Courts and commentators have frequently contended that "there is no useful legislative history attached to the introduction of sex as a forbidden ground in Title VII" [14] because the amendment was introduced merely "one day before the House of Representatives approved Title VII." [15] Some commentators assert that Representative Howard Smith of Virginia, a noted racist, proposed this amendment both as a joke and as an attempt to defeat the Civil Rights Act. [16] Although "Representative Smith was indeed a racist and would have been happy to see the defeat of the Civil Rights Act, . . . he had also been a sponsor of the Equal Rights Amendment since 1943 and was a supporter of the National Women's Party (NWP)." [17] Categorizing the amendment as a joke also ignores the remarks of numerous representatives who advocated for the amendment on the floor of the House [18] and the fact that both houses of Congress approved the amendment and passed the Civil Rights Act without further changes to the sex discrimination provision. [19]

The Supreme Court affirmed that Congress, through Title VII, made classifications based on sex unlawful. [20] The Court declared: "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of dispa-


rate treatment of men and women resulting from sex stereotypes." [21] In an often-cited concurrence, Justice Marshall observed that "characterizations of the proper domestic roles of the sexes [a]re not to serve as predicates for restricting employment opportunity." [22] Accordingly, employers are not only prohibited from restricting employment opportunities on the basis of sex, but also from grounding employment decisions "on mere 'stereotyped' impressions about the characteristics of males or females." [23]

Although society has made progress in workplace gender equality and the Supreme Court has broadly criticized employment classifications based on sex or stereotyped impressions of men and women, lower courts have uniformly ruled that employer-mandated sex-differentiated dress and grooming codes comply with Title VII. [24] This was not always the case. In the period immediately following the passage of Title VII, the Equal Employment Opportunity Commission (EEOC) was prepared to pursue cases where an employer imposed different grooming standards on men and women. In 1972 the EEOC ruled:

To maintain one employment standard for females and another for males discriminates because of sex . . . and is unlawful unless the employer demonstrates the applicability of the narrow bona fide occupational qualification exception . . . [which w]e hold, that as a matter of law, . . . is not applicable to [the] Employer's long hair policy. [25]

This view was supported and afforded deference by several early district court rulings. [26] In Donohue v. Shoe Corp. of America, Judge Pregerson eloquently reasoned:

In our society we too often form opinions of people on the basis of skin color, religion, national origin, style of dress, hair length, and other superficial features. That tendency to stereotype people is at the root of some of the social ills that afflict the country, and in adopting the Civil Rights Act of 1964, Congress intended to attack these stereotyped characterizations so that people would be judged by their intrinsic worth. [27]

Similarly, in his opinion for Aros v. McDonnell Douglas Corp., Judge Ferguson maintained that "[a]n employer has every right to adopt dress codes suitable to various job categories. . . . A dress and grooming code, however, must be applied equally to everyone. It may not establish different standards for males and females; it may not discriminate on the basis of sex." [28] Judge Ferguson went on to assert that Title VII does not allow employers to "indulge" in generalizations or stereotyped responses and "requires that every individual be judged according to his own conduct and job performance." [29]

Over time, however, courts moved away from this view and began endorsing employer-mandated sex-differentiated dress and grooming codes. [30] Eventually, "[e]ven the EEOC admitted defeat." [31] It announced that it would continue to hold "to its longstanding view that absent a showing of a business necessity, different grooming standards for men and women constitute sex discrimination...

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