"Princess Boy," dress codes, and the quagmire of sex discrimination case law

Posted by Charles Colman

Yesterday, the TODAY show ran a segment on Cheryl Kilodavis's experience raising a son who likes to wear princess dresses-- an experience that produced the book "My Princess Boy". (Her son came up with the term.)


The segment seems generally well-intentioned, though interviewer Meredith Viera's frequent use of the term "princess boy" as an apparent synonym for any male who wears gender non-conforming clothing was irksome. Viera expressed the hope that 2011, unlike 2010, would be a year of acceptance instead of bullying based on gender norms. (Sadly, many of the nearly 1,000 viewer comments on this segment illustrate that such hope may be naive at present.)


In any event, when Ms. Kilodavis's son grows up-- let us hope he attends a (preferably non-fictional) school with a zero-tolerance bullying policy-- and joins the workforce, will he find that his boss is as accepting of his dress preferences as his parents have been?


Sex discrimination law (cases are usually brought under the federal statute known as "Title VII") is arguably more complicated than the law on disability-related discrimination, which I introduced yesterday. I could not possibly cover the entire field of case law (on either type of discrimination) in one blog post. With that caveat, federal case law generally provides that "companies may differentiate between men and women in appearance and grooming policies". Yet at the same time, antidiscrimination case law states that "we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group." In short, this means that different cases have come out different ways.


Thus, courts have thrown out discrimination suits brought by plaintiffs with gender non-conforming manners of self-presentation where the employer's sex-differentiated dress code "had a de minimis [i.e., trivial] affect [sic] on employment" (policy forbidding men from wearing earrings), where the code was "for the most part unisex" (policy requiring women to wear makeup; emphasis mine), and where a code *not motivated by discrimination* "impose[d] different but essentially equal burdens on men and women."


In one (now 25-year-old) non-employment-related case, Devine v. Lonschein, not entirely on point but too interesting to leave out, a federal district court judge ruled that a state-court judge had not engaged in unlawful discrimination by requiring only male lawyers appearing before him to wear a tie. As the federal court vividly declared: "At least until that dreadful day when unisex identity of dress and appearance arrives, judicial officers such as [the state-court judge in question] are entitled to some latitude in differentiating between male and female attorneys, within the context of decorous professional behavior and appearance." (The district court's opinion was "affirmed"-- notably, without opinion-- by the Second Circuit.) Devine has not been explicitly overruled, but recent citations to the earlier case omit its more extreme passages. The issue of courtroom self-presentation has undoubtedly come up more recently, but alas, there isn't time to delve into the issue in any greater detail.


As for cases coming out in favor of the plaintiff (at least at the summary judgment stage), there are a variety of "different uniform" wins: in one case, the court noted that a rule requiring only women to wear uniforms would lead observers to conclude that female employees had "a lesser professional status than their male colleagues attired in normal business clothes". Another court found evidence sufficient to support a discrimination claim where adverse action was taken against a female employee after she donned the company's "men's uniform." In other cases, courts have come out in favor of plaintiffs where a policy required that only female employees dress "provocatively", or conversely, where a supervisor singled out a woman for an outfit he found too provocative. It is important to note that in cases like these, there is typically additional evidence on the record *beyond the dress regulation itself* that could support a jury finding of discriminatory intent, should the case go to trial.


The closest thing to what lawyers call a "bright-line rule" that can be drawn from these cases -- admittedly, without engaging in weeks of legal research -- is a distinction between haircut/grooming/social customs cases (plaintiffs, especially men, usually lose) and uniform/outward discrimination cases (plaintiffs, more often women, stand a better chance of winning.)


Nevertheless, the age of some important rulings, the ever-changing politics of the judiciary, and the "smell" of this case or that all make it fairly unhelpful to attempt to draw "bright-line rules" in this area.


Indeed, sometimes, passages from different opinions seem to flatly contradict one another (without always acknowledging as much.) For example, in one widely cited 1979 case, a federal appellate court noted that '[s]o long as [the employer's rules] find some justification in commonly accepted social norms and are reasonably related to the employer's business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women." (Emphasis mine; the court's ruling nevertheless favored the plaintiff.)


Compare this passage to language from a 2009 district court case, in which the court cautioned that an employer's key decisions may not be "infected by sex stereotypes".


A sociologist (or perhaps anyone inclined to challenge the status quo) might wonder what sort of "commonly accepted social norm" would not in any way be "infected by sex stereotypes." That is to say, Princess Boy's employer could easily prove that a prohibition on males wearing dresses mirrors "commonly accepted social norms," but would -- it seems to me -- be hard-pressed to show that this norm has nothing to do with sex stereotypes. A "conservative" court might find that no stereotyping has occurred, because the "no men in dresses" prohibition is essentially arbitrary, saying nothing (explicit) about the inherent qualities of men versus women. A "liberal" court might find the same policy potentially discriminatory by coming at the question from a different angle: because dresses are less "practical" than, say, suits, a women-only policy raises serious questions-- particularly in light of the history behind each garment. (A fashion historian's testimony could prove very valuable in the right case.)


Lest you think I've neglected a key issue, I should point out that "nearly all federal courts have said . . . transsexuality itself . . . is unprotected by Title VII." So the fact of a plaintiff's transgender or transsexual status, standing alone, is -- at least theoretically -- legally irrelevant. With that said, since these characteristics will in many cases not exist in isolation, i.e., without any outward manifestation, trans plaintiffs may nevertheless have legal avenues available to bring discrimination claims, including those of the sort summarized above.


So, to bring a far-too-long post to a close, what is the bottom line for Princess Boy? Whether he is able to continue dressing as he pleases into adulthood -- assuming his sartorial preferences remain the same -- will depend on multiple factors, including the geographic region where he works, the case law in that region (as well as state and local anti-discrimination laws, which often provide greater protection to employees than does Title VII), a judge's sense that employment decisions were motivated by ill will vs. (relatively) neutral policy enforcement, and how effectively each side has marshaled evidence tending to show the former vs. the latter. As lawyers often say, "more cases are won on the facts than on the law."


As always, the publication of this blog does not create an attorney-client relationship. Likewise, its content does not constitute legal advice. If you are confronted with a situation that presents potential legal issues, whether touched on here or not, please schedule a formal consultation with a lawyer. Attorney Advertising!