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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
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Johnson 1976; Philips v. Martin Marietta Corp. 1971; UAW v. Johnson Controls, Inc. 1991; Wilson v. Southwest Airlines Co. 1981). Such regulations, including limitations or prohibitions applicable to hair length, hair style, uniforms, jewelry, and (more recently) body piercings, have drawn minimal judicial concern under Title VII because they do not involve “immutable characteristics” such as race or color, and individuals typically have the ability to comply (see, e.g., Baker v. Cal. Land Title 1974, and Harper v. Blockbuster 1998 [hair length]; Booth et al. v. Maryland Dept. of Public Safety 2003 [dreadlocks]; Cloutier v. Costco 2004 [piercing and body modification]). Although courts generally have been deferential to an employer’s desire to regulate employee appearance in order to present to its customers a professional-looking workforce (Cloutier v. Costco 2004; Wisely v. Harrah’s 2004), where appearance standards clearly apply differently to men and women, they are typically held to be prima facie discriminatory under Title VII, and thus sustainable only if based on a BFOQ. For example, in Frank v. United Airlines (2000), the Ninth Circuit held that flight attendant weight

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