Sameness, Subordination, and Perfectionism: Toward a More Complete Theory of Employment Discrimination Law

This Article focuses on two muddled and contested areas of sex discrimination case law - the first deals with sexuality and the second with gender nonconformity in the workplace. Both are areas in which courts, at times, impose significant accommodationist demands on employers in the name of Title VII's antidiscrimination mandate. Section II addresses cases in which employers attempt to discriminate on the basis of sex in order to protect customers' personal or sexual privacy or to provide customers with a particular kind of sexual titillation. As a general matter, courts permit discrimination in the first type of case - imposing no accomodationist demands on employers, while prohibiting discrimination in the latter - imposing significant accommodationist demands.

Section III addresses claims by gender nonconforming women and men that Title VII protects them from disadvantage in the workplace. In such cases courts require employers to hire some, but not all, gender nonconforming individuals despite discomfort from coworkers and customers, thereby imposing significant accommodationist costs on employers in the instances in which discrimination is prohibited. I contend that the antidiscrimination demands imposed on employers in these areas cannot be fully understood and explained by resort to Title VII's core liberal commitments, but instead reflect underlying and implicit judicial conceptions of human flourishing. These judicial conceptions of human flourishing need not be deliberate, nor even conscious, but a recognition of their presence is necessary to explain, or render intelligible, the current state of sex discrimination caselaw.

In other words, at least at the margins, the scope of Title VII's antidiscrimination protection is driven by judicial judgments about what kinds of people, with what kinds of traits and attributes, are valuable enough to be worth the costs of inclusion. Before turning to an analysis of the case law, I begin by discussing briefly the concepts that are critical to my analysis.