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

摘要

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 co-workers. Workplace civility policies may hold promise for limiting both legal liability and practical consequences in the absence of a legislative response.