The Peahen's Tale, or Dressing Our Parts at Work
Duke Journal of Gender Law & Policy, Vol. 14, p. 423, 2007
44 Pages Posted: 23 Apr 2008 Last revised: 19 Jun 2012
In the years since Title VII outlawed sex discrimination by employers, courts have continued to uphold as non-discriminatory various sex-differentiated dress and grooming codes; indeed, these codes are unique in that they facially differentiate on the basis of sex and yet are not subject to the usual legal test for facially discriminatory employment rules. In recent years, several scholars and some courts have begun to note a tension between these grooming cases and the increasingly prominent "sex-stereotyping" theory of discrimination recognized by the Supreme Court in Price Waterhouse v. Hopkins. In this paper, I look for inspiration to evolutionary explanations of differences in "dress" between male and female animals in order to explore whether sex-differentiated dress codes are simply reflections of benign social norms, as many courts insist, or rather whether they should be invalidated as illegal sex discrimination. I conclude that a close examination of the sexual selection literature reveals that sex dimorphisms in animal dress reflect male-female power dynamics and are closely related to sexual attractiveness and mating behavior. Indeed, sexual behavior and power dynamics are two sides of the same coin and cannot be disentangled in the context of animal dress. Based upon this insight from sexual selection research and theory, I argue that it is impermissible for employers to mandate, and for courts to validate, dress and grooming differences that reflect social gender norms of attractiveness and decoration.
Keywords: sex discrimination, Title VII, evolutionary biology, sex-stereotyping, workplace dress codes
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