In 1989, the U.S. Supreme Court held in Price Waterhouse v. Hopkins that Title VII prohibits employers from penalizing employees for failing to conform to the gender stereotypes associated with their sex. Two decades later, courts continue to show ambivalence in sex-stereotyping cases.

More specifically, courts continue to uphold employers’ dress and grooming policies that differentiate by sex and, in the course of doing so, demand that their employees adhere to the stereotypical appearance standards assigned to their sex. A federal court ruling, in Creed v. Family Express Corporation, involving a transgender employee, illustrates, and repeats, the mistake of many other courts that have refused to see these policies as a form of illegal sex stereotyping.

PRICE WATERHOUSE'S REACH

In Price Waterhouse, the plaintiff was denied partnership in an accounting firm, at least in part because she was too aggressive, cursed like a truck driver, and did not walk, talk, or dress in a feminine manner. In short, she was a woman who acted like a man, and for that she was dealt a career-stunting blow. The Court held in Price Waterhouse that Title VII forbids employers from discriminating against an employee for failing to live up to gender role expectations. You can't, in other words, punish a female employee for not being feminine enough, nor a man for being insufficiently masculine. (As discussed in Chapter 4, Price Waterhouse is also significant for having established the mixed-motive proof structure.)

How far has the reasoning in Price Waterhouse reached? Ideally, it would reach as far as necessary to serve one of the central aims of antidiscrimination law: to promote equal employment opportunity through the eradication of sex-stereotyped decision making. The reach of Price Waterhouse has been tested primarily in three types of cases: (i) cases of gay men or lesbians challenging harassment or other discriminatory behavior; (ii) cases of women challenging sex-differentiated dress or grooming codes; and (iii) cases of transgender persons challenging all varieties of employment policies and decisions. Cases in each category, as well as cases that involve intersecting categories, reveal both the limits and the untested waters of the law's protection against sex stereotyping.