This Article provides a new perspective on Title VII caselaw concerning employer-mandated, sex-specific dress codes. With few exceptions, courts have held that employer dress codes do not constitute sex discrimination even when they expressly differentiate based solely on an employee's sex. In other contexts, courts readily acknowledge that facially sex-based practices and policies are presumptively unlawful under Title VII. When it comes to dress codes, however, nearly the opposite is true. Courts generally presume a sex-based dress code to be permissible, and the burden falls heavily on the employee to show, beyond the mere fact of differential treatment, some additional disparity or harm, such as that the particular requirements at issue are more burdensome for women than for men or that they perpetuate stereotyped views of women as inferior or as sexual objects. This pervasive attitude of judicial laissez-faire toward sex-based dress codes is increasingly anomalous in the wider context of sex discrimination caselaw, and yet shows no signs of abating. This Article argues that this doctrinal blind spot is an unintended-and unfortunate-by-product of "second generation" equality theory, which downplays formal equality and focuses on anti-subordination principles as the purpose of equality law. While affirming the continuing importance and viability of second generation equality theory in the areas of affirmative action and disparate impact, the Author argues that an over-emphasis on anti-subordination theories has skewed dress code caselaw and prevented courts from seeing the discriminatory harms caused by sex-specific dress requirements. Prescriptively, the Article suggests ways for litigants to refocus courts on first generation principles in dress code cases. This includes strategies for identifying the harm caused by the formal labeling of difference, a harm ignored in cases of sex discrimination but well understood for race. Such a litigation strategy would be more effective than pursuing the currently popular sex stereotyping theory, which has largely failed to expose the detrimental impact of sex-based dress codes on employees.
19 Yale J.L. & Feminism 353 (2008)