Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, and Similar Judicial Myths: The Convergence of Title VII Literalism, Congressional Intent, and Kantian Dignity Theory

Authors

Peter Brandon Bayer, University of Nevada, Las Vegas -- William S. Boyd School of Law

Document Type

Article

Publication Date

2015

Abstract

Title VII prohibits employers from imposing their racial, sex-based, ethnic, or religiously inspired grooming and appearance standards, even if, in light of widely accepted social conventions, the vast majority would feel exceptionally uncomfortable in the presence of employees who refuse to comport with their employers' discriminatory rules. Indeed, nearly four decades ago, with correct simplicity and directness the Supreme Court recognized Title VII's first principle: "Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin." Therefore, contrary to the harsh dismay expressed by Judge Richard Posner, Title VII's enlightened prohibition against discrimination indeed and quite rightly recognizes "a federally protected right for male workers to wear nail polish and dresses and speak in falsetto and mince about in high heels, [and] for female ditchdiggers to strip to the waist in hot weather," if such prohibitions are predicated on unnecessary sex-based bias, as almost certainly they would be.

Publication Citation

89 St. John's L. Rev. 401 (2015).

Recommended Citation

Bayer, Peter Brandon, "Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, and Similar Judicial Myths: The Convergence of Title VII Literalism, Congressional Intent, and Kantian Dignity Theory" (2015). Scholarly Works. 1013.
https://scholars.law.unlv.edu/facpub/1013