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 I, 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.
Katharine T. Bartlett,
Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol92/iss8/7