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Employ Respons Rights J (2007) 19:95–111 DOI 10.1007/s10672-007-9037-z

Appearance-based Sex Discrimination and Stereotyping in the Workplace: Whose Conduct Should We Regulate? Stan Malos

Published online: 12 April 2007 # Springer Science + Business Media, LLC 2007

Abstract Court treatment of sex discrimination and harassment claims based on appearance and gender stereotyping has been inconsistent, particularly where the facts involve reference to sexual orientation. Ironically, court willingness to allow such claims may turn on the choice of verbal or physical conduct by, or the sex or sexual orientation of, the alleged offenders. Because plaintiffs in such situations may assert retaliation claims to increase their chances of prevailing, employers should focus less on regulating aspects of personal appearance unrelated to job performance and more on problematic reactions by coworkers. Workplace civility policies may hold promise for limiting both legal liability and practical consequences in the absence of a legislative response. Key words workplace appearance . sex discrimination . gender stereotyping . sexual orientation . retaliation . workplace civility As the number of employment-related discrimination, harassment, and retaliation claims based on employee appearance has continued to increase, so has the variety of fact patterns that underlie such claims. For example, in Yanowitz v. L’Oreal (2005), the California Supreme Court upheld plaintiff’s right to bring a retaliation claim based on her apparent targeting for disciplinary and other adverse action after she refused to follow a superior’s order to fire a dark-skinned female salesperson and “get me somebody hot” (referring to a light-skinned blond). The majority of appearance-based discrimination claims, however, still represent two types: those based on the effects of employer dress codes, grooming standards, or other appearance-based requirements, and those based on the effects of coworker reactions to or stereotypes about gender-related appearance or conduct for men and women on the job. Both types of claims have proved problematic for plaintiffs, but for different reasons. The former, which may involve personal, financial, or even religious objections to S. Malos (*) College of Business, San Jose State University, One Washington Square, San Jose, CA 95192-0070, USA e-mail: malos_s@cob.sjsu.edu

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Employ Respons Rights J (2007) 19:95–111

compliance with appearance requirements, have fallen victim to judicial deference for employers’ rights to maintain reasonably businesslike workplaces. The latter, which may involve reactions to feminine males, masculine females, or epithets reflecting perceived gay or lesbian status, have had difficulty overcoming judicial reluctance to read protection for sexual orientation into Title VII of the Civil Rights Act of 1964. Because attempts to amend Title VII to provide this protection have been unsuccessful (see Berkley and Watt 2006; Kramer 2006), litigants in these areas have had to look to state laws or local regulations that offer such protection where they exist. However, recent changes to the standards for proving retaliation under Title VII suggest that such plaintiffs may increasingly assert retaliation claims to improve their chances in court. Because a retaliation claim does not require success on the underlying discrimination or harassment complaint if it was made in good faith and can be shown to have triggered further mistreatment on the job, it can be pursued independently once a complaint about the offending conduct is filed, and adds an additional source of potential employer liability. To combat such liability proactively, employers should consider adopting and enforcing general civility and non-bullying policies in the workplace rather than trying to regulate aspects of employee appearance that bear little if any relationship to performance on the job.

Appearance-based Cases Generally: The...
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