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Caldwell, Natasha --- "Workplace Appearance Standards" [2009] CanterLawRw 1; (2009) 15 Canterbury Law Review 1

Last Updated: 8 January 2013

WORKPLACE APPEARANCE STANDARDS: UNDRESSING THE LAW

NATASHA CALDWELL*

I. INTRODUCTION

If a lady rebels against wearing high-heeled shoes, she should take care to do so in a very smart hat.
(George Bernard Shaw, 1928)

As dress and appearance are forms of social language, serving to communicate 'a panoply of social messages',1 it is unsurprising many employers seek to impose restrictions on the appearance of their employees in the workplace. Although the imposition of gendered appearance standards in the workforce may appear unobjectionable to many, such requirements not only have problematic normative underpinnings but also present significant difficulties for individuals whose gendered identities do not conform with societal norms.
Significantly, the issue as to whether a gender based appearance requirement can contravene New Zealand's human rights legislation has been left open by the New Zealand Employment Court, and judicial examination of this pertinent issue has been sparse in this jurisdiction. However, a significant corpus of law regarding the legality of sex-differentiated employment dress codes has developed under the comparable legislative frameworks of America and England. In both jurisdictions the relevant legislation prohibits unlawful discrimination in employment, with reference to the less favourable treatment of employees on the grounds of 'sex', and the definitions of unlawful discrimination in both jurisdictions thus bear a striking similarity to that found in the provisions of New Zealand's domestic human rights legislation.
This article therefore aims both to analyse the legal reasoning employed by the overseas courts in their determination of the legality of gender based dress codes and to evaluate the policy concerns that have been relied upon to reject recognition of such discrimination claims. This analysis is undertaken with a view to ascertaining the appropriate judicial path that the New Zealand courts should take in determining the legality of gendered appearance standards under New Zealand's human rights framework. A comparative analysis of the international jurisprudence has not been previously undertaken in academic literature; and the question of how the New Zealand courts would determine the legality of appearance standards under current legislation has not been subjected to previous examination. This article therefore seeks to uncover the impact that the international jurisprudence could have in New Zealand's legislative setting and, finally, to propose a way forward.

II. PRELIMINARY ISSUES

'Sex' and 'Gender'

In order to examine the significant role that dress and appearance can play in the construction of one's gendered identity, it is necessary to examine the theoretical exposition that has developed in regards to the distinctions to be drawn between the categories of 'sex' and 'gender'. The term 'sex' is used to refer to the irreducible biological classification that is made between the sexed male and female body, pursuant to the medical procedure of chromosomal typing or the ascertainment of an infant's genitalia at the time of birth.2 An individual's classification into the sexed category of male or female thus amounts to no more than a simple biological delineation. In contrast, the conception of 'gender' encapsulates the more elusive concept of the masculine or feminine characteristics that identify an individual as male or female.3 The two concepts are quite distinct.
Essentialist ideology has historically prescribed that an individual's gendered identity is inherently linked to his or her biological sex. Accordingly, under the essentialist theoretical framework, the behaviours and characteristics associated with the concepts of masculinity and femininity are regarded as intrinsically entwined with the sexed body.4 This rigid binaristic division leaves no room for any acceptance of the possibility of gender fluidity occurring within its confines. However, a conflicting proposition which emerges from post-modernist thought is the assertion that gender is in fact inherently fluid. In contrast to the essentialist notion that an individual's gendered identity is biologically predicated upon the sexed body, post-modern scholarship proposes that gender can be viewed as a 'free floating artifice' that remains unlinked to an individual's biological sex.5 The perceived intrinsic nature of gender identity is argued to be created through a series of repeated acts that include 'bodily gestures, movements and the stylisation of the body', rather than through biological dictates.6 Gender is accordingly viewed as essentially performative.
In light of the fundamental role that the 'stylisation of the body' holds in the construction of gender identity, it is no surprise that dress, grooming, and appearance, are generally seen to be the most important indicator of gender difference in daily social interactions.7 The use of gender based dress and appearance standards in the workplace is thereby an effective tool by which gender differences can be accentuated.8 However, while gendered dress requirements may appear to be superficially benign, such standards do have harmful normative implications. It is accordingly instructive to examine the fundamental policy concerns that arise with the imposition of such standards in the workplace.

Female Equality

A fundamental aim of sex discrimination law is to ensure that women are assured of access to the same rights and freedoms as are granted to men.9 However, any judicial approach that allows employers the ability to impose standards of grooming or dress that perpetuate dominant gender norms will inevitably hinder the achievement of this objective. In order to understand the feminist concerns regarding the imposition of gendered dress codes in the workplace, it is necessary to explore briefly both the normative underpinnings of dominant gender ideologies, and the societal structure within which they are created.
The prevailing gender ideologies that pervade Western society are premised upon the purported contrast between male and female behavioural characteristics. Under dominant cultural dictates, true masculinity is equated with the traits of aggressiveness and power, while the ideal characteristics of femininity are believed to include the traits of submissiveness and servility.10 Such gender norms are thus framed within a patriarchal structural framework predicated upon a societal belief in masculine dominance and superiority.11 A logical corollary of this cultural framework, which reinforces the purported inferiority of females, is the subsequent societal emphasis placed on the importance of a female's aesthetic appearance. Under patriarchal ideology the significance of a female's appearance gains paramountcy, as it is considered vital that women are able to both please and remain attractive to men.12 Female dress is a powerful tool by which such oppressive norms can be propagated. Orthodox items of female attire, such as high heeled shoes and skirts, communicate the demeaning messages of female weakness, dependency, and availability for sexual or emotional service.13 Such social messages are inherently degrading for all women.

Accordingly, the reproduction of dominant gender appearance norms in the employment arena is particularly problematic. Dress and grooming standards that mandate conformity with stereotypical forms of feminine appearance reinforce derogatory ideals which can effectively inhibit female progression in the workforce. Skill, competence, and work ethic should always hold greater priority in the workplace than the ability of a female employee to portray a feminine appearance.14 However, any judicial acceptance of workplace appearance standards that encompass traditional notions of femininity reinforces the view that a female employee's ability to conform to aesthetic feminine ideals can legitimately amount to an important and relevant employment consideration. Such a prospect has far-reaching implications, and is hardly conducive towards ensuring attainment of the goal of achieving female equality in the workforce.
It is apparent that any emphasis placed upon the appearance of females in the workplace will hinder intellectual and job development in a number of ways. The American Psychological Association has established, for instance, that concerns held by females about their appearance reduces the availability of their cognitive resources required to process actions and thoughts.15 Mandating compliance with a traditionally feminine appearance in the workplace has also been found to interfere with the respect accorded to the professional capabilities of female employees.16 Such consequences are manifestly undesirable.

Transgender Equality

Not only do gendered based dress codes present obstacles to the goal of attaining female equality in the workforce, they also create significant employment barriers for transgendered individuals. The term 'transgender' is used to refer to a 'person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these'.17 Thus, a transgendered individual will often outwardly present a gender identity that may not reconcile with his or her biological sex. As emphasised by the Human Rights Commission, all transgendered people should, by virtue of their common humanity, be entitled to the protection and promotion of their human rights.18 However, an employment dress policy that requires a connection between gendered presentation and biological sex will often carry significant psychological implications for transgendered people, and may create unassailable barriers towards their entry and assimilation in the workforce.19 The imposition of gender based appearance requirements will thus both marginalise and subordinate transgendered individuals. Such an outcome cannot be seen to accord with the ideals of social justice underpinning anti-discrimination legislation.


III. NEW ZEALAND JURISPRUDENCE

The Human Rights Act 1993

The Human Rights Act 199320 was enacted with the goal of ensuring the effective protection of human rights in New Zealand, and of honouring New Zealand's commitment to international human rights covenants.21 A fundamental tenet that permeates such international instruments is the principle that all individuals should be granted the right to equality of opportunity and treatment in employment;22 and s 22 of the Human Rights Act reflects the importance of this right through its explicit proscription of unlawful discrimination in employment on any of the prohibited grounds.23 This prohibition of unlawful discrimination in employment is also reflected in s 104 of the Employment Relations Act 2000,24 contravention of which can give rise to a personal grievance claim.25 The particular ground of discrimination that is the subject of discussion in this article is that of 'sex, including pregnancy and childbirth' under s 21(1)(a) of the Human Rights Act.26 Although this is a prohibited ground of particularly longstanding, the potential breadth of the parameters of the term 'sex' remains largely untested.27 In light of the uncertainty surrounding the possible scope of s 21(1)(a) of the Act, the issue as to whether the prohibition of unlawful discrimination on the grounds of 'sex' could extend to the prohibition of gender based dress codes is one of some significance.

Williams v Kimberlys Fashions Ltd

The potential utility of New Zealand's human rights legislation in prohibiting gendered appearance standards remains an unresolved issue, following the decision of the Employment Court in Williams v Kimberleys Fashions Ltd.28 In Williams, the Court was presented with the opportunity of exploring the issue of whether the defendant's requirement that the complainant (a female sales assistant in its retail fashion store), wear facial make-up was in contravention of New Zealand's human rights legislation. The complainant objected to the wearing of make-up, on the grounds that cosmetic foundation reacted badly with her skin, and she believed that because 'it was no longer the 1950s' women should be able to choose whether or not to wear make-up at work.29 While it was accepted by the Court that the defendant's requirement had had a significant effect on the complainant's psychological well-being, by creating feelings of despondency over her appearance, and exacerbating symptoms of depression,30 the Court, through opting to resolve the issue on a contractual basis, successfully evaded undertaking any substantive analysis of the wider discrimination issues that the compulsory make-up requirement could entail.
Holding that there was neither a contractual condition necessitating the use of facial make-up for the complainant, nor any evidence that attempts to introduce the requirement as part of the employer's house rules were properly communicated to the complainant, the Court concluded that the respondent had no contractual entitlement to insist upon compliance with this appearance standard. Accordingly, the respondent's insistence on the complainant's use of facial make-up, despite knowledge of the complainant's aversion to cosmetics, was held to amount to a breach of its duty to 'not act in a manner calculated to destroy or seriously damage the employment relationship'.31 This breach formed one of the 'major factors'32 that contributed to the success of the complainant's alternative claim of constructive dismissal.
The resolution of this issue on contractual grounds allowed the Court to avoid examination of the question as to whether a contractual condition necessitating the use of facial make-up for female employees could fall foul of New Zealand's human rights legislation. The possibility of a full substantive analysis of the matter was in fact given short shrift. Simply acknowledging that the issue was 'fraught with difficulties' the Court declared that any substantive engagement with the matter was better left for 'argument on another occasion';33 and thus the key issue, which is of considerable importance for human rights law in New Zealand, was very briefly dispensed with and remains unresolved.
Although the Employment Court in Williams declined to provide any determinative guidance on the legality of the compulsory facial make-up requirement, a few brief obiter observations made by the Court do shed some light on the current judicial attitude towards the imposition of gender based grooming requirements in the workplace. Both the Court's observation that 'there may well be workplaces where the nature of the work requires facial make-up, such as a women's cosmetic retail shop', and its reasoning that it was 'not beyond argument' that an employer in a woman's clothing boutique could require its staff to wear facial make-up if it was a 'mutual contractual requirement',34 indicated a judicial belief in the assumed innocuous nature of this grooming requirement. This judicial attitude is of some concern. Considerable legal and policy issues surround the imposition of gender based appearance requirements, and the Court's cursory treatment of these issues was therefore unfortunate. The reluctance to examine the issues in greater depth was not, however, altogether surprising. Any judicial determination of the legality of gender based appearance standards would require the courts to explore the intricacies of sex and gender identity, and to grapple with significant arguments of policy. The task does not lend itself to easy resolution.
We are thus drawn to question how the New Zealand courts should attempt to confront this crucial matter. And in order to ascertain the appropriate judicial path that should be taken, it is instructive to examine and evaluate the legal principles that have arisen from the international jurisprudence surrounding the legality of the imposition of gender based appearance standards in the workforce.

IV. AMERICAN JURISPRUDENCE

Title VII Civil Rights Act 1964

A very substantial body of jurisprudence regarding the legality of sex-differentiated dress codes has developed under America's federal anti-discrimination legislation, Title VII Civil Rights Act 1964. This legislation provides that it shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his or her terms or conditions of employment because of his or her 'sex'.35 While the concept of discrimination is not defined by the legislation, it has been judicially established that direct discrimination will be established under the Act when an employer treats some employees 'less favourably' than others pursuant to a prohibited ground of discrimination.36 Accordingly, discrimination under Title VII would be found to have occurred where an employee receives less favourable terms or conditions of employment, because of his or her sex. It becomes immediately apparent that this concept of direct discrimination is analogous to the prohibition under the Human Rights Act 1993 of 'less favourable' terms or conditions of employment by reason of sex pursuant to s 22(1)(b).37
While the concept of indirect discrimination is also prohibited under Title VII,38 an appearance standard sex discrimination claim inevitably falls within the scope of a direct discrimination claim. A gender based appearance standard, such as a requirement to wear make-up, does not apply equally to all male and female employees, and is thus not a term or condition that is neutral on its face.39 The American cases therefore concern direct discrimination alone.
Very significantly, the legislative prohibition of discrimination on the grounds of 'sex' under Title VII has been accorded a liberal interpretation by the United States Supreme Court, pursuant to its proscription of sex stereotyping in the seminal decision of Price Waterhouse v Hopkins.40 Here, the female claimant, employed as a senior manager within the employer's accounting firm, was denied a promotion to partnership level, despite having attained consistent recognition for her professional capabilities. The coup de grace of her subsequent sex discrimination claim, brought under Title VII, was the advice given by an employing partner to the claimant to 'walk more femininely, talk more femininely, dress more femininely, wear make-up, have [her] hair styled and wear jewellery'.41
Justice Brennan, delivering the plurality judgment, held that the employer's refusal to promote the claimant — an employment decision that was motivated by sex stereotyping amounting to an 'impermissibly cabined view of the proper behaviour of women' — contravened the legislative protection provided by Title VII.42 Hereby, it was established that employment decisions driven by stereotyped gendered ideals could amount to employment discrimination that occurred because of 'sex', and the Supreme Court's acknowledgement that requiring an employee to conform to stereotypes associated with his or her sex would contravene Title VII was a groundbreaking step in the progression of America's sex discrimination law.43 Explicitly recognising the dangers of propagating gendered ideals in the workplace, the plurality judges' landmark pronouncement that 'gender must be irrelevant to employment decisions',44 and their emphatic affirmation that 'Congress intended to strike at the entire spectrum of disparate treatment of men and women deriving from sex stereotypes',45 revealed an unmistakable willingness to look beyond the rigid dichotomies of biological sex so as to recognise the harms perpetuated through employer adherence to the orthodox ideals of masculinity and femininity.

Jespersen v Harrah's Operating Company

The United States Supreme Court has not yet been presented with the opportunity to provide definitive guidance on the appropriate judicial approach to be taken towards the specific dress code issue, but the recent decision of Jespersen v Harrah's Operating Company,46 heard en banc by the Ninth Circuit Court of Appeals, is now widely accepted as having provided authoritative framework by which dress code discrimination claims are to be decided in the United States.47 This appellate decision accordingly provides an excellent platform from which the prevailing American judicial approach towards the imposition of gender based dress codes in the workplace can be explored.

In order to examine the legal analysis employed by the Ninth Circuit in Jespersen, it is necessary first to traverse the factual background. The impetus behind this sex discrimination claim was the complainant's dismissal from employment as a bartender following her non-compliance with the employer's requirement that female bartenders wear full facial make-up during their hours of work. This make-up stipulation, encompassed within the employer's wider 'Personal Best' dress policy, had been introduced under the guise of a wider 'Beverage Department Image Transformation' scheme.48 Although the dress policy mandated use of the same unisex uniform for male and female bartenders alike, the grooming standards under the policy differed significantly for both sexes. In contrast to the requirements that males had to wear their hair above collar length, and have clean hands with neatly trimmed nails, the hair of female bartenders was to be presented in a style that was 'teased or curled', while finger-nails were to be adorned with nail-polish.49 The make-up requirement included within the policy stipulated that face powder, blush, mascara and lip colour was to be worn in 'complementary colours' at all times.50 The claimant, an exemplary employee who had provided the employer with twenty years of service, objected to the make-up requirement, on the grounds of the alleged degradation that compliance with the obligation entailed.
The Court was presented with two alternative grounds upon which the dress policy was argued to amount to discrimination because of sex. First, it was asserted that, in accordance with established precedent, the female dress code contravened Title VII through imposing an unequal burden on female employees. Secondly, the Ninth Circuit was urged to apply the Price Waterhouse principle to recognise the illegality of the make-up rule pursuant to its requirement that women conform to sex stereotypes as a condition of employment. These contrasting approaches will now be discussed in turn.

Unequal Burdens Approach

American jurisprudence has established that a sex-differentiated dress code will amount to a less favourable term or condition of employment under Title VII, if compliance with the overall gender based dress code as a whole can be seen to be unduly burdensome for one sex. Bearing in mind that this approach is simply a judicial interpretation of what constitutes less favourable terms of employment and conditions of work,51 it is apparent this approach would be open for the New Zealand courts to adopt under New Zealand's comparable legislation.
The unequal burdens approach has not in fact always prevailed in American law. An examination of the vast American jurisprudence surrounding the legality of sex-differentiated dress codes reveals a significant maturation of the judicial approach to the issue over recent decades. In the embryonic stages of the dress code jurisprudence, judicial reliance was placed on the intrinsically mutable nature of dress requirements in order to successfully defeat discrimination claims,52 and aggrieved claimants were confronted with a virtually insurmountable hurdle.
However, with the increasing recognition that the scope of the legislative protection provided by Title VII extended beyond the protection of only immutable characteristics, the previous judicial dependence on the concept of mutability to defeat dress code discrimination claims began to be superseded by the alternative inquiry as to whether a sex-differentiated dress code could be seen to unduly burden one sex over the other.53 Thus, requirements where a workplace uniform was imposed on female employees alone,54 or where the requisite female uniform was sexually revealing,55 or where only female employees were required to comply with workplace weight requirements56 were all found to be unduly burdensome. A salient feature of this judicial approach is that the effect of the dress code as a whole is examined, rather than the particular appearance requirement that may be the subject of complaint. While no clear judicial explanation has been offered for the underlying reasoning behind this principle,57 it would appear, as explained below, to be driven by a judicial reluctance to recognise the viability of such discrimination claims.

The judicial proclivity towards comparing the purported burdens associated with compliance with a sex-differentiated dress code was formalised by the Ninth Circuit in Frank v United Airlines.58 Illustrating a tacit acceptance of gender differentiated appearance standards, the Court established the governing principle that gendered appearance codes which impose 'different but essentially equal burdens on men and women' will not amount to direct discrimination under Title VII.59 Thus, although the court in Jespersen was presented with the proposition that a sex-based difference in appearance standards should of itself amount to direct sex discrimination, such an assertion was rejected. Rather, the Court held that the unequal burdens analysis was required in order to establish that the complainant was treated less favourably with regards to her terms and conditions of employment.60 The Jespersen majority's unquestioning acceptance of this formulation has now firmly entrenched the unequal burdens test as the guiding framework to be followed in dress code discrimination claims in the United States.
Despite the majority's explicit endorsement of the unequal burdens approach in Jespersen, their subsequent application of the test vividly illustrates the inherent difficulties that arise with this judicial formulation; and the intrinsically amorphous nature of the test was revealed through the Court's preferred construction of the respective 'burdens' to be compared under the male and female dress codes. Opting for a narrow construction of the 'burdens' that were to be measured, the majority focused solely on the monetary and temporal constraints created by compliance with the differing dress policies.61 Following this approach, the female dress policy was held to impose no greater burden on female employees than that experienced by their male counterparts. Although the majority accepted that the policies contained different grooming standards for male and female employees, it was nevertheless argued that when the overall codes were respectively considered neither could be seen to be more onerous for one sex than the other.62 Unfortunately, no comprehensive analysis accompanied this finding. Rather, reliance was placed on the lack of documentary evidence provided by the claimant in regards to the time and cost requirements necessitated by compliance with the dress policy.63

The possibility that the unequal burdens test could potentially be satisfied by clear and compelling evidence of both monetary and temporal disparities was left open by the majority, but the majority's clear reluctance to countenance that the time and cost constraints of the 'Personal Best' code could have satisfied the unequal burdens test was questionable. When a comparative analysis of the male and female dress codes is undertaken, in the fiscal and temporal terms prescribed by the majority, a stark discrepancy in the burdens associated with the respective appearance standards is in fact revealed. As acknowledged in the pragmatic dissent of Judge Kozinski, when a comparison is made between the differing grooming standards for the hands, hair and face, it is indisputable that a greater burden was created for female employees.64 As cogently argued by the Judge, any appearance standard that requires female employees to wear facial make-up creates a significant temporal burden, as the application of cosmetic make-up involves 'an intricate and painstaking process [that] requires considerable time and care'.65 The financial expenditure associated with the required use of cosmetic products was also alluded to by Judge Kozinski, who appeared perplexed that the majority could be in 'any doubt that putting on makeup costs money'.66 The judge's reasoning here is surely persuasive. It is well established that the economic burdens associated with make-up use can be substantial,67 and given that there was no equivalent expenditure required of male employees under the 'Personal Best' policy, the greater economic burden should have been self-evident. If the unequal burdens test were to be accepted, it is clear that the dress code at issue in Jespersen should have satisfied the test's requirements.
While the dress code examined by the Ninth Circuit in Jespersen could readily have satisfied the unequal burdens test, it must be emphasised that the foundations of the actual test itself are questionable, if not fundamentally flawed, and that judicial adherence to this approach is undesirable. First, the focus by way of comparison on the total effect of the dress code for women when compared with the effect of the dress code for men is obscure. As argued by Judge Pregerson, the fact that a dress policy contains sex-differentiated requirements for both male and female employees should not exempt a particular requirement from scrutiny.68
Secondly, the test itself is plagued with imprecision, as no definitive guidance as to the parameters of the burdens to be measured currently exists. Surprisingly, the vagueness surrounding the intended scope of the test has not perturbed the judiciary but rather been seemingly embraced. The remarks of the lower Court that there was no need to clarify the boundaries of the judicial approach, as it did not 'equate to an exact science yielding results with mathematical certainty'69 illustrates well the lack of judicial desire to clarify the parameters of the 'burdens' to be compared. This judicial ambivalence is unsatisfactory: the inherent flexibility of the test's boundaries grants the courts too much license to allow subjective policy matters to influence the scope of the test's parameters, and the outcomes of any judicial application of the approach will inevitably be highly variable.70 Such concerns are well illustrated by the Jespersen decision itself. Although the consideration of the demeaning nature of a gender based dress code had previously fallen within the scope of a 'burden' to be compared,71 the uncertainty surrounding the test's intended scope enabled the majority in Jespersen to restrict their consideration to concerns of a purely fiscal and temporal nature.

It must also be emphasised that the majority's narrow construction of the 'burdens' to be compared under the approach is inherently problematic from a normative perspective. In particular, the Court, by limiting its comparative analysis to a consideration of time and cost constraints, was able to eschew any examination of the implicit harms that can be occasioned through requiring employee compliance with the dominant norms of femininity. For instance, this restricted construction enabled the majority both to overlook the claimant's sense of ignominy, suffered as a result of the compulsory make-up requirement, and to evade exploration of the wider normative underpinnings that such a requirement entailed.72 This approach, through enabling the Court to successfully side-step any normative discussion of the desirability of gendered appearance standards, seemingly ignores Title VII's fundamental aim of challenging harmful employment practices.
It has accordingly been suggested that the unequal burdens test should be expanded to include consideration of the underlying harms occasioned by the perpetuation of dominant gender norms within its parameters.73 This argument does have some merit. Nevertheless, it must be noted it fails to identify the core difficulty that arises with the unequal burdens test. Any argument that advocates the expansion of the test to include consideration of intangible burdens within its parameters implicitly accepts the validity of this form of comparative assessment. Such unquestioning acceptance of the test's foundations is dubious, as it is clear that any attempts to compare the purported burdens that arise with differing dress codes will inevitably require recourse to some form of arbitrary nominalism.74 While it may be feasible to attempt to compare the time and costs associated with compliance, which still requires the court to engage in a somewhat protracted fact-finding inquiry,75 any suggestion that a court is ostensibly able to measure and weigh the subjective degradation that may be experienced under each gender based dress code is untenable. Attempts to compare the severity of the implicit harm that may be occasioned through a restriction on a male employee's hair length, with the requirement that a female employee wear make-up will be entirely dependent upon the judiciary's subjective inclinations. However, it can be conceded that a judicial inquiry into the normative foundations of an appearance standard, under the more expansive approach, is certainly a more attractive option than adherence to the narrow approach advocated by the majority in Jespersen.

It must also be noted that the test operates upon the illogical premise that any burden associated with a sex-differentiated dress code is able to be considered as inherently benign if it can purportedly be compared to a restriction in the contrasting dress code for the other sex.76 As will be discussed below, this illustrates well the significant difficulties that arise with the formal equality construct that permeates anti-discrimination law. The broad method of comparative analysis adopted by the Court demonstrated a judicial acceptance that any gender based dress requirements imposed upon the other sex are sufficiently similar in nature to be included within the comparison required to establish that less favourable treatment has occurred.77 Such a premise offers little hope for any sense of progression in sex discrimination jurisprudence. This comparative approach offers no protection for employees whose gendered identities do not conform with societal norms, and it fails to allow for consideration of the undesirable ideologies propagated by the dominant norms surrounding female appearance. It would be unfortunate indeed if the New Zealand courts sought to adopt this flawed approach.

Sex Stereotyping Approach

As discussed above, the Supreme Court's judgment in Price Waterhouse provided an important and overt judicial recognition that any condition of employment which required compliance with gender norms could constitute discrimination on the grounds of 'sex'.78 At first sight, this principle would appear to be of significant utility to employees seeking to challenge dress codes which encompass stereotypical gendered ideologies. It is clear that through proscribing the perpetuation of sex-stereotyping in the workforce the Supreme Court can be seen to have 'articulated a doctrinal framework' that provided federal courts with the tools to identify and proscribe any workplace rules that operated to reinforce gendered expectations.79 Indeed, under the Price Waterhouse framework, it could easily be contended that an appearance requirement that requires a female employee to comply with the dominant norms of femininity would amount to a 'less favourable' term or condition of employment that arose because of the employee's sex.

The Ninth Circuit in Jespersen was presented with such an argument. In contrast to the District Court's rejection of this proposition, the Court did concede that any appearance standard encompassing 'impermissible sex stereotyping' could be challenged under the Price Waterhouse decision.80 Such a judicial acknowledgment would at first sight appear to have been a significant step forward in dress code discrimination jurisprudence. However, any aspirations of truly noteworthy progression were rendered hollow by the majority's narrow interpretation of the 'impermissible sex stereotyping' standard. By emphasising that the 'Personal Best' policy was neither 'sexually provocative', nor driven by an intention to 'stereotype women as sex objects', the majority indicated that the 'impermissible sex stereotyping' standard should be confined to dress standards that explicitly sexualised female employees.81 Such a proposition is rather puzzling, and is irreconcilable with the underpinning rationale of the Price Waterhouse decision that gender must be irrelevant to employment decisions. Additionally, the majority's failure to contemplate that the facial make-up requirement was driven by gendered stereotyping is at complete odds with the Price Waterhouse decision itself. As the Supreme Court had viewed the suggestion that the female claimant wear make-up to be evidence of sex stereotyping, it is certainly surprising that the compulsory make-up requirement at issue in Jespersen was not subjected to greater scrutiny.82 The Jespersen decision thus appears to narrow the scope of the Price Waterhouse principle for no apparent reason.
The majority's failure in Jespersen to consider the potentially pernicious effects of the employer's facial make-up requirement was made possible by their assertion that the requirement should not be considered in isolation, but rather that the sex-stereotyping that was evident in the policy as a whole should be considered. Following this approach, it was reasoned by the majority that in light of the unisex uniform included within the policy there was no evidence that the policy as a whole was adopted to 'make women bartenders conform to a commonly accepted stereotypical image of what women should wear'.83 The majority's approach is troubling, and offers little hope for ensuring the attainment of female equality in the workplace. As argued by Judge Pregerson in his dissent, the majority's refusal to give separate consideration to the make-up requirement enabled otherwise impermissible gender stereotypes to be neutralised.84
Incontrovertibly, the facial make-up requirement could have been subjected to challenge under the Price Waterhouse principle. As acknowledged in Judge Pregerson's dissent, any make-up requirement is inevitably driven by sexual stereotyping, because it produces the 'inescapable message, that women's undoctored faces compare unfavourably to men, because of the cultural assumption and gender based stereotype, that women's faces are incomplete, unattractive, or unprofessional without full make-up'.85

As such, the normative underpinnings of make-up use are disturbing and well established. Make-up as a form of cosmetic adornment originated from the intention to replicate female sexual arousal,86 and the prevalent use of cosmetic make-up in Western society is now widely acknowledged to be driven by the stereotypical assumption that women should appear ornamental in appearance, so as to appear attractive to men.87 Accordingly, any employment requirement necessitating the use of make-up during working hours propagates stereotypical notions of femininity which will inevitably hinder the effective advancement of women in the workforce.

Price Waterhouse and Transgendered Rights

The majority's assiduous attempts in Jespersen to narrow the application of Price Waterhouse not only lacked a sound legal base but appeared to be fundamentally at odds with the developing American jurisprudence surrounding transgendered rights in employment. Historically, federal courts have been reluctant to hold that employment discrimination on the grounds of an employee's transgender identity could constitute discrimination on the grounds of 'sex', because of the judicial belief that Title VII was only intended to prohibit 'discrimination against women because they are women, and men because they are men'.88 However, the judicial treatment of transgendered discrimination has recently become marked by an increasingly liberal attitude. In the seminal decision of Smith v City of Salem,89 the Sixth Circuit of the Court of Appeals indicated that any judicial denial of the protection of transgendered individuals under Title VII had been 'eviscerated' by the decision of Price Waterhouse.90 The Court upheld a sex discrimination claim brought by a male fire-fighter, diagnosed with gender identity disorder, who was dismissed from employment after informing his employers of his wish to present as a woman at work. It was argued by the Court that 'discrimination against a plaintiff who is transsexual, and fails to act or identify with his or her gender, is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman'.91 This reasoning is compelling. In light of the growing judicial acceptance that Price Waterhouse can be invoked to protect transgender individuals who do not conform to societal gender norms, it appears all the more anomalous that under Jespersen such individuals could nevertheless be dismissed for a failure to comply with gendered appearance standards

Bona Fide Occupational Qualification

The Ninth Circuit's questionable application of the unequal burdens test, and its narrow reading of the Price Waterhouse principle, resulted in a finding that facial make-up requirement did not contravene Title VII's prohibition of discrimination on the grounds of sex. Accordingly, there was no need for the respondent employer to attempt to justify its dress policy under the statutory 'Bona Fide Occupational Qualification' (BFOQ) defence. Nevertheless, in light of the unpersuasive reasoning employed by the majority in Jespersen, the potential application of the BFOQ defence to the Jespersen case merits some comment, for while this defence is far wider than the equivalent exception provided by s 27 of the Human Rights Act 199392 the established principles surrounding the justification might provide some assistance to the New Zealand courts.93
Title VII provides that employment discrimination which occurs 'because of sex' will be justified in situations where the 'discrimination is reasonably necessary to the operation of the business or enterprise'.94 In contrast to the judicial ambivalence discernable in the approach taken by federal courts towards the recognition of sex discrimination in the workplace, the BFOQ defence is treated with a significant degree of respect. The Supreme Court has stipulated that the justification is 'meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex',95 and Federal courts have taken heed of this rigorous instruction. It is now well established that an employer's desire to accede to the demands of customer preferences does not satisfy the stringency of the narrow exception.96 For instance, in the influential decision of Wilson v Southwest Airlines,97 it was confirmed that any judicial inquiry under the BFOQ defence must focus 'on the particular service provided and the job tasks and functions involved, not the [employer's] business goal'.98 It was also emphasised by the court that the BFOQ provision cannot be employed to justify the exploitation of female sexuality to ensure the generation of profit.99 Accordingly, the employer's claim that the financial viability of its airline was dependent upon hiring solely young and attractive females was emphatically rejected.
While the scope of the BFOQ justification has been subjected to considerable interpretative rigidity by the courts, various grounds upon which the defence can succeed have been established.100 Of most significance to our discussion of gendered dress policies, is the judicial acceptance that female sexuality can be legitimately exploited in instances where the primary purpose of the business is sexual entertainment. For instance, in St Cross v Playboy Club of New York,101 it was accepted that the employer's practice of hiring solely female waitresses, who were required to wear revealing 'bunny' outfits whilst serving cocktails, was justified on the basis that the dominant purpose of the Playboy Club was to 'titillate and entice male customers'.102 Thus, sexually charged uniforms would be permissible in businesses that aimed to provide some form of sexual gratification for their customers.
Examining these established precedents, it emerges that the employer in Jespersen would have struggled to surmount the hurdle posed by the BFOQ defence. As the bartenders' job description was to 'maintain courteous professional working relationships with customers and co-workers, and to make drinks effectively and efficiently',103 it becomes clear that the purported need for female staff to maintain a traditionally feminine appearance could not be seen to fall within the essence of the job tasks and functions required by the employer. Indeed, when the potential applicability of the BFOQ justification to the Jespersen case is examined, the absurdity of the compulsory make-up requirement is well and truly highlighted.

V. ENGLISH JURISPRUDENCE

The limited English jurisprudence that has developed in regards to the legality of gender specific dress codes reveals a similar judicial reluctance to countenance the notion that gender based appearance standards could contravene England's legislative framework on discrimination. Under s 1(1)(a) of the Sex Discrimination Act 1975,104 discrimination is defined as 'less favourable treatment' on the grounds of 'sex', and this definition of discrimination is thus analogous to the proscription of 'less favourable' terms of employment and conditions of work under s 22(1)(b) of the Human Rights Act 1993. The leading English decision on the discriminatory effects of gender based dress codes was delivered by the Court of Appeal in Smith v Safeway,105 and here the Court was presented with the opportunity to examine the validity of the seminal approach taken towards such policies by the Employment Appeals Tribunal in Schmidt v Austicks Bookshops.106 Phillips LJ delivered the leading judgment in Safeway, with separate concurring judgments being delivered by Peter-Gibson LJ and Leggatt LJ

The approach taken by the Employment Appeals Tribunal in Schmidt, was strongly endorsed by their Lordships, and the reasoning employed by the Tribunal in that decision therefore needs to be examined first.

Schmidt v Austicks Bookshops

The Schmidt decision involved the dismissal of a female sales assistant for non-compliance with her employer's dress code that prohibited female employees from wearing trousers at work. Unsurprisingly, this restriction did not apply to male employees. Dismissing the complainant's claim, the Employment Appeals Tribunal urged that an expansive approach towards the establishment of 'less favourable treatment' should be taken.107 Noting that it was not possible to identify a comparable dress restriction that applied to male employees, it was nevertheless held that through engaging in a comparative analysis of the restrictions encompassed within the contrasting dress codes it was 'possible to approach the matter a little more broadly'.108 Following this approach, it was reasoned that because the wearing of T-shirts, and other 'out of the way' clothing was prohibited for male employees, the employer, 'as far as a comparison was possible ... treated both female and male staff alike, in that both sexes were restricted in the choice of clothing for wear whilst at work'.109 It can thus be seen that a notable feature of the Employment Appeals Tribunal's judgment was its refusal to consider the form and extent of the restrictions imposed under the respective dress codes. Such an approach meant that the Employment Appeals Tribunal's preferred form of comparative analysis was pitched at an extremely high level of abstraction.

Smith v Safeway

Two decades after the delivery of the Schmidt decision, the Court of Appeal was presented with the opportunity to reconsider the broad method of comparison favoured by the Employment Appeals Tribunal. In Safeway, the male complainant had been dismissed from employment as a delicatessen assistant, having failed to comply with the employer's appearance standard prohibiting male employees from having hair that fell below collar length. As female assistants were permitted to have long hair (provided it was clipped back during working hours), the employer's restriction was driven by appearance concerns rather than those of health and safety. A discrimination claim under s (1)(1)(a) of the Sex Discrimination Act was duly lodged.
Dismissing the complainant's sex discrimination claim, the Court of Appeal affirmed the Schmidt approach and clarified the principles to be derived from the decision. While the majority of the Employment Appeals Tribunal in the Safeway case had taken the somewhat innovative approach of attempting to distinguish Schmidt on the grounds that the hair restriction would impact the male claimant's appearance outside working hours, such an intrusion being deemed to be 'fundamentally unfair',110 the Court of Appeal was sceptical of that reasoning. Rather, the Court stated that Schmidt's application extended beyond the simply ephemeral to include the more permanent of appearance characteristics.111 The distinction that had been drawn by the Tribunal between differing forms of appearance was thus discredited.
The broad comparative approach advocated in Schmidt was explicitly endorsed by the Court in Safeway, and Phillips LJ accepted that any comparison undertaken of differing dress standards should not be taken garment by garment but rather that a comparative 'package approach' should be taken of the policies as a whole.112 The emphasis placed by the Employment Appeals Tribunal in Schmidt on the need to compare the restrictions imposed under each code, was similarly reflected in Phillips LJ's finding that as the employer had taken an 'even-handed' approach towards the dress policies by imposing restrictions on the hair-styles of both men and women the Sex Discrimination Act had not been contravened.113 As to what exactly would constitute the specific hair restrictions for females was left unclear - although, apparently influenced by having viewed a 'variety of unconventional hairstyles' while 'walk[ing] through Camden Lock market on a Saturday afternoon', his Lordship did assert that female employees would hypothetically have been prevented from 'shaving part of [their] scalp' under the dress code.114 The Court's reasoning thus reflected the same unwillingness witnessed in the Employment Appeals Tribunal decision in Schmidt to delve into a deeper examination of both the type and extent of restrictions imposed under the contrasting codes.
Although the reasoning of the Court in Safeway has not been the subject of sustained judicial or academic examination, the intended scope of the 'even-handed' requirement stipulated by the Court was the subject of consideration by the Employment Appeals Tribunal in the later case of Department for Work and Pensions v Thompson.115 In Thompson, the Employment Appeals Tribunal was presented with the proposition, advanced by the Manchester Employment Tribunal (MET) that the 'even-handed' approach prescribed by the Court of Appeal necessitated the imposition of an employment dress code requiring both sexes to wear clothing of a similar kind. Following this interpretation, the MET had upheld a sex discrimination claim brought by a male administrative assistant, who had been disciplined for non-compliance with his employer's gendered dress code requiring male employees to wear a collar and tie at work. As the female dress code simply required female employees to 'dress appropriately and to a similar standard', the Tribunal's restricted interpretation of the 'even-handed' formulation had resulted in its recognition of the sex discrimination claim, on the grounds that women had a greater choice of options for workplace attire as they were not required to wear clothing of a particular kind at work.116 Overturning the MET's decision, the Employment Appeals Tribunal opined that the evenhandedness stipulation simply required the tribunal to investigate whether 'applying standards of conventional dress wear, the level of smartness which [the employer] required of all its staff could only be achieved for men by requiring them to wear a collar and tie'.117 This broader interpretation, it could be commented, was more consistent with the higher level of comparative abstraction favoured by the Court of Appeal in Safeway.

Problems with the Safeway Approach

While the Court of Appeal's decision in Safeway remains the governing approach to be taken towards dress code discrimination claims under English law, fundamental difficulties arise with the legal analysis employed by the Court in the decision. First of all, the Court in Safeway overlooked the definitive 'but for' causal test established by the House of Lords in James v Eastleigh.118 In a pivotal statement, Lord Goff in James had stipulated that the court must determine whether a complainant would 'have received the same treatment from the defendant but for his or her sex'.119 Under a straightforward application of the 'but for' test, a claim of sex discrimination could readily have been founded in Safeway.
It has been mistakenly assumed that the complainant's dismissal in Safeway amounted to 'less favourable treatment' that would not have occurred 'but for' his sex.120 This argument, though, overlooks the fact that 'less favourable treatment' under the Sex Discrimination Act is a test that needs to be established before the examination of any employment detriment suffered, as a result of this treatment, is undertaken.121 However, as the denial of a choice that holds value for the complainant does constitute 'less favourable treatment', under the Act,122 the hair restriction imposed on the male employee in Safeway can easily be seen to fall within the scope of s (1)(1)(a).123 Quite simply, the restriction imposed on the male's hair length would not have occurred 'but for' his sex.

Additionally, the Court of Appeal neglected to follow the approach taken by their Lordships in James with respect to the appropriate formulation of a comparator to whom a sex discrimination claimant must be compared when determining whether 'less favourable' treatment has occurred. In James, their Lordships emphasised that when the comparison to establish the occurrence of 'less favourable treatment' is undertaken, any gender based criterion imposed on the other sex should not be included within the scope of the comparison.124 The Safeway approach cannot be reconciled with this imperative. Following the James analysis, the gender based restrictions imposed on the hair styles of female employees in Safeway should not have been considered in the Court's examination as to whether 'less favourable treatment' could be seen to have occurred.125 The Court's failure to consider the implications of the James decision is inexplicable.
The clear discrepancy that arises between the James and Safeway approaches was briefly alluded to by the Employment Appeals Tribunal in the Thompson decision. Observing that the causal 'but for' test could not be used to establish less favourable treatment in and of itself, the Employment Appeals Tribunal was careful to emphasise that the causal test was to be applied only after the occurrence of less favourable treatment had been established.126 However, the Employment Appeals Tribunal declined to provide any comment on the general inconsistency that currently exists between the Safeway and James principles. Rather, it was acknowledged by the Employment Appeals Tribunal that 'it should be left to the Court of Appeal to decide what impact the James case had on the principles enunciated in the Safeway case'.127 The law in England thus remains inconsistent.
It is not only the legal analysis of the Safeway decision that gives cause for concern: the normative implications of the decision are equally worrying. A salient feature of the Court of Appeal's decision in Safeway was the Court's explicit endorsement of employment dress codes that embraced conventional appearance standards. Phillips LJ's affirmation that gendered dress codes enforcing a 'common principle' of 'conventionality' could not be seen to be discriminatory was unfortunate,128 and the unquestioning judicial acceptance of the standard of conventionality seemingly contradicts the overriding goal of the Sex Discrimination Act, which is to combat societal adherence to traditional sex stereotypes.129
The potential discrepancy between the employer imposition of gender based dress standards, and the normative aims of the Sex Discrimination Act had been judicially recognised before the Safeway decision. Early concerns were voiced by the Industrial Tribunal, in the unreported decision of Rewcastle v Safeway Plc,130 that a 'policy which is designed to mirror 'conventional differences' between the sexes cannot be reconciled with the underlying rationale of the sex discrimination legislation which is to challenge traditional assumptions about sexes, not only as to their roles in society, and the tasks they perform, but also as to their appearance and dress'.131 The reasoning is surely persuasive, and Phillips LJ's explicit rejection of the Industrial Tribunals' unease132 revealed a seeming indifference to the fact that the conceptual underpinnings of the Sex Discrimination Act cannot be easily reconciled with the judicial acceptance of conventional appearance standards in the workplace.
Upon close examination of the Safeway decision it also becomes apparent that the Court's conception of conventionality encompassed highly questionable ideals of gender normativity. Phillips LJ's contention that a purportedly conventional female dress code could include '18 inch hair, earrings and lipstick'133 shows the underlying dangers of employing an inherently fluid standard that is so obviously prone to manipulation at the judiciary's whim. The concept of conventionality employed by Phillips LJ illustrates that the entirely subjective opinions of judges will permeate and shape the standard of conventionality which is to be treated as the benchmark of apparent fairness. The approach thus enables the courts to bypass any consideration of the harms that can be occasioned by the perpetuation of gendered stereotyping in the workplace, and it should be eschewed by the New Zealand courts.

VI. THE FAVOURED MODEL OF JUDICIAL COMPARISON

The Comparative Approach

The comparative model endorsed by the Court of Appeal in Safeway remains the guiding approach for dress code discrimination claims under English law, and it is clear the abstracted comparative approach favoured by the Court bears a striking similarity to the unequal burdens test applied by the Ninth Circuit in Jespersen. Both approaches allow the courts to avoid any sustained analysis of the particular dress or grooming requirement that is the subject of complaint, through focusing on a wider comparative analysis of the restrictions encompassed within the dress codes as a whole. The Safeway approach can thus be subjected to many of the same criticisms leveled above at its American counterpart. As the Safeway analysis requires the courts to compare the 'restrictions' imposed under contrasting dress codes, without providing any guidance as to what such restrictions may entail, the framework enables the courts to avoid any normative evaluation of the implicit harms occasioned by the imposition of gender based dress codes in the workplace.
Although the Safeway form of comparison is analogous to the unequal burdens test, it must be emphasised it remains significantly less developed. And as no incisive analysis of the form of restrictions to be compared was required by the Court of Appeal, its preferred form of comparison was pitched at a significantly higher level of abstraction than that adopted by the Ninth Circuit in Jespersen. In short, exactly what may comprise such a restriction under the Court of Appeal's approach remains elusive, and a greater amount of judicial flexibility will thus be accorded to sex-differentiated dress codes in England. This is well illustrated by the fact that while the imposition of uniforms on only female employees has been regarded as unduly burdensome under the American jurisprudence,134 a compulsory dress requirement that obliged only female nurses to wear a starch linen cap was upheld under the broad Schmidt approach.135
A significant issue that surprisingly has not been raised in previous academic comment is that the concerns arising from the abstracted form of comparative analysis in both the American and English jurisdictions bring to the fore wider difficulties arising from the general conception of formal equality as a whole. The formal equality principle is predicated upon the Aristotelian ideal that like should be treated alike, and this normative aspiration underpins the concept of direct discrimination.136 At first sight this ideal appears to be both morally sound and laudable. However, any hopes that this form of equality will achieve liberal aspirations are rendered illusory upon closer examination. Acute difficulties arise with the definition of what constitutes the intrinsically nebulous concept of 'likeness', as any attempt at definition of likeness is bound to result in tautology.137
The lack of any substantive justification underpinning the normative foundations of the formal equality construct presents significant obstacles to the goal of ensuring that social justice is achieved under anti-discrimination legislation. As the conception of formal equality is predicated upon the objective of consistency in treatment, the normative aims of this construct simply amount to a principle of relativity containing no substantive underpinnings.138 Thus, under the conception of formal equality there is no difference between treating individuals equally badly or equally well.139 It can accordingly be argued that the sheer illogicality of the fact that an employer, under the Jespersen or Safeway approach, is granted the license to balance the restrictions associated with differing gender based dress codes is symptomatic of the wider difficulties that plague the general concept of formal equality as a whole.

The greatest difficulty associated with the formal equality construct is the need for a form of comparison to be undertaken between the complainant and another individual in similarly situated circumstances.140 Such a task is necessitated by the construct's normative underpinnings, and the very notion that like must be treated alike inevitably requires the courts to select an appropriate comparator to whom the claimant can be compared. The freedom given to judges in the construction of a comparator gives cause for concern, as the judicial determination of an appropriate comparator inevitably requires a 'complex value judgment as to which of the myriad of differences between two individuals are relevant, and which are irrelevant'.141
The fact that hidden moral and ideological underpinnings will inevitably influence the form of comparison to be undertaken is seen in the international jurisprudence surrounding gendered appearance standards. And, as discussed above, the judicial preference towards a broad form of comparative analysis enables the courts to avoid considering the possibility that an appearance requirement, incorporated within a wider dress policy, could contravene sex discrimination legislation. The courts' implicit acceptance that differing gender based appearance standards, imposed on employees of the other sex, are sufficiently alike to be included within the comparison required for the establishment of less favourable treatment142 means the substantive justifications of such restrictions are never adequately explored. As there is no good reason why the courts should consider the net equality of a sex-differentiated dress code, instead of examining the particular dress requirement that is the subject of complaint,143 the judicial tendency to favour the more abstracted form of analysis is revealing. The reluctance to narrow the comparison to be undertaken indicates a deep-seated aversion towards the recognition of such discrimination claims, and it thus becomes necessary to explore the jurisprudential foundations of this judicial unease and to examine whether the concerns have any validity.


VII. POLICY CONSIDERATIONS

Acceptance of Societal Norms

An underlying judicial assumption that the perpetuation of prevailing societal norms in the workplace is unobjectionable can be perceived in the American and English jurisprudence surrounding sex-differentiated dress discrimination claims, and a clear judicial reluctance to interfere with prevailing hegemonic ideologies can be discerned from the case law analysed above. The earliest stages of the American jurisprudence was noteworthy for its avowed acceptance of the purported innocuous nature of societal norms. For example, the assertion in the early case of Carroll v Federal Savings Bank144 that a dress code with some justification 'in commonly accepted social norms' was acceptable,145 illustrates well the prevailing judicial attitude. While such judicial sentiments were not as pronounced in the Jespersen decision, the majority's intuitive acceptance of the apparent innocuousness of dominant gendered norms was still evident; and Justice Schroeder's refusal to contemplate that a compulsory make-up requirement could constitute a form of 'impermissible sex stereotyping' provided an illuminating illustration of the majority's unquestioning acceptance of prevailing gendered appearance standards.
Judicial receptiveness towards the permissibility of gendered norms remains even more explicit under English law. As seen above, the conventionality threshold established by the Court of Appeal in Safeway ensures that dress codes encompassing dominant gender norms will be viewed as unobjectionable. Unfortunately, any judicial support of the viability of gender norms serves to effectively reinforce their validity, and societal progression and development is thereby inhibited.146 Although it has been argued that the task of challenging societal norms should not fall to the judiciary,147 such assertions fail to recognise that a quintessential aim of all anti-discrimination legislation, which the judiciary is required to interpret and apply, is to challenge traditional assumptions and prejudices. A broad and purposive construction of such legislation would therefore require a deeper questioning of the validity of dominant gender norms, rather than an unquestioning acceptance of their permissibility.

Inability to Comprehend Gender Fluidity

A deep-seated judicial unwillingness to disrupt the dichotomous boundaries of gender normativity can also be discerned from an examination of the international jurisprudence discussed above. Although the concern voiced in an earlier federal decision that abolition of gender based dress codes would result in male employees 'minc[ing] around in high heels',148 was not so colourfully expressed by the majority in Jespersen, lingering concerns about gender transgressions in the workplace were still evident in the judgment. For instance, the reasoning that the sex-differentiated grooming standards were necessary to create a 'professional' look for the bartenders,149 illustrated the majority's inability to embrace the existence of gender fluidity in the workplace.
In Safeway the Court of Appeal was significantly less restrained in communicating its unease surrounding the occurrence of workplace cross-dressing. Phillip LJ's highly questionable assertion that the necessity of gender based dress codes was obvious, in view of the fact that men could otherwise be subjected to the requirement of having to wear '18 inch hair, make-up, and high heels'150 to work, was certainly revealing. Notwithstanding the irrationality of the assumption that recognition of a sex discrimination claim would inevitably result in compulsory cross-dressing in the workplace, Phillip LJ's analysis unwittingly disclosed a deeply ingrained perception that the practice of cross-dressing was simply unfathomable.
In light of the progressive liberality that has begun to pervade international jurisprudence surrounding transgender rights in employment, the judicial disdain accorded to gendered presentations that destabilise hegemonic gender ideologies is rapidly losing force. As discussed above, some Federal courts in the United States are beginning to engage in a broad construction of Title VII in order to provide protection from discrimination to transgendered employees. Moreover, the European Court of Justice's recognition that protection of discrimination on the grounds of gender re-assignment should fall within the scope of the Equal Treatment Directive's prohibition of sex discrimination,151 led to the enactment of the Sex Discrimination (Gender Reassignment Regulations) 1999 in the United Kingdom.152 As the protection from discrimination provided by the legislative amendment extends to the pre-surgical period of transition, the concerns over men wearing high heels voiced in Safeway appears all the more anomalous.153 A fundamental chasm currently exists between the restrictive dress code jurisprudence, and the progressive attitude that has begun to be taken towards transgender rights in the international arena.

Employer's Right to Control Business Image

At first glance, the current anomaly that exists between the judicial recognition of transgender rights in employment and the contrasting rejection of gendered appearance standard discrimination claims would appear entirely incomprehensible. However, upon a deeper examination of the current jurisprudence a clearer picture begins to emerge.
In the United States, evidence of a significant judicial deference towards an employer's prerogative to control its business image surfaces from an exploration of the case-law, and the purported need for an employer to be free to create a particular business image, through the imposition of gender based dress codes, has long pervaded American judicial thinking. Recourse to such a policy concern was well illustrated by comments made in the early decision of Fagan v National Cash Register,154 to the effect that 'no facet of business life is more important than a company's place in public estimation'.155 As the unfortunate perception that the 'spectre of men in dresses' may be 'commerce threatening'156 still lingers amongst the American judiciary, this could explain the underlying judicial reluctance to embrace any approach that accepts the possibility of fluidity in gender presentation occurring in the workplace. The pivotal role that an employer's business image plays in the imposition of gender differentiated dress policies was also demonstrated in the Jespersen decision itself. The overt aim of the 'Personal Best' policy was to maintain a 'brand standard of excellence,' and the majority's emphasis that the policy was imposed within 'the context of the entertainment industry'157 illustrated belief in the importance of an employer's brand image. The clear judicial acquiescence towards the protection of the employer's business judgment is surprising. Under a broad and purposive construction of human rights legislation, the employee's right to remain free from discrimination would surely need to be accorded paramountcy. Additionally, judicial consideration of the effect that the appearance of employees may have on profit margins has been explicitly excluded from the BFOQ justification. The policy considerations concerning the employer's right to control its business image are correspondingly quite weak.
A similar judicial yielding to the purported need to protect an employer's managerial discretion can also be discerned from an examination of the English jurisprudence. For instance, the Employment Appeals Tribunal in Schmidt placed reliance on the now discredited Court of Appeal judgment of Peake v Automotive Products Ltd158 to assert that because an employer was entitled to 'a large measure of discretion in the control of his establishment', judicial interference with the imposition of gender based dress codes was ill-advised.159 However, as this element of the Peake judgment had been rejected by the time of the Safeway decision,160 the absence of any attempts by the Court of Appeal to scrutinise the Employment Appeals Tribunal's endorsement of Peake is telling.161 In fact, the purported right for an employer to control the image of its business was explicitly recognised by the Court. Holding that the employer in question was at liberty to impose differing hair requirements for its staff, on the supposedly 'sound commercial' grounds that such appearance standards were what the customers of the business required,162 the Court's rejection of the discrimination claim appeared to be driven by the perceived imperatives of customer preference. Such policy concerns are unsound: there is no justification provided for direct discrimination of this kind under the Sex Discrimination Act,163 and the court's deference to the requirements of customer preference was in flagrant disregard of the anti-discrimination statute.164 Moreover, it is clear that in ascertaining whether or not direct discrimination has occurred, the employer's underlying motives of maintaining commercial viability should be of no relevance.165 The Safeway reasoning is, in brief, flawed.

Floodgate Concerns

A profound objection to the potential judicial recognition of the illegality of a gender based dress standard is based on the fear that any judicial proscription will inevitably open the floodgates to an unadulterated flow of discrimination claims brought by employees dissatisfied with their workplace dress requirements.166 Such concerns were evident in Judge Schroeder's contention in Jespersen that judicial recognition of the claimant's sex stereotyping claim would come precariously close to holding every grooming apparel or appearance requirement that an individual finds personally offensive to be a successful sex discrimination claim.167
These concerns may at first sight have some superficial attraction. However, assertions that recognition of the illegality of gender based dress requirements would inevitably result in the downfall of all employment dress codes are unnecessarily alarmist. First of all, it must be noted that judicial recognition of a sex discrimination claim would not prevent the imposition of standards of cleanliness and tidiness in the workplace, and a gender-neutral prohibition of casual attire, such as T-shirts, jeans or trainers, would not infringe any sex discrimination legislation.168 Secondly, and on an entirely pragmatic note, it is clear that compliance with dominant gender norms is unproblematic for many individuals. The eradication of compulsory gender based dress requirements is therefore most unlikely to alter greatly the appearance of an employer's workforce, as the very nature of dominant norms entails that the majority will seek to comply with them. The policy concerns over the prospect of a flood of discrimination claims are groundless.

VIII. NEW ZEALAND'S FUTURE JUDICIAL PATHWAY

The Approaches Open to the New Zealand Courts

It can be seen from the above analysis that the policy objections raised against judicial recognition of the discriminatory effects of gender based dress concerns are ill-conceived, and should not impede the New Zealand courts from recognising the illegality of gender based appearance standards under our human rights legislation. On the contrary, considerations of policy should in fact propel future judicial proscription of the use of such standards in the workplace. The ever-increasing recognition of the need to ensure transgendered individuals have access to fundamental human rights, and the desirability of combating oppressive gender ideologies in the workforce, lend force to the argument that such gender based dress codes should be judicially declared to be prohibited under New Zealand's human rights legislation. However, while there is clear normative validity in the judicial recognition of dress code discrimination claims, we are drawn to question how such a claim could feasibly succeed under New Zealand's current legislative framework.
It is first necessary to observe that the Employment Court's obiter contention in Williams that a 'mutual [facial make-up] contractual requirement'169 could not contravene New Zealand's human rights legislation was misguided. A fundamental tenet of anti-discrimination law is that an employee's consent to a discriminatory term or condition of employment does not serve to dilute its discriminatory effect.170 The Court's emphasis of the purported mutuality of the appearance requirement was therefore doubtful, and should not unduly influence thinking on this issue.
While any substantive examination of unjustified disadvantage grievances falls outside the scope of this article, it must also be noted that under New Zealand's legislative framework the purported imposition of gender based dress standards, pursuant to the introduction of a new employment policy, could amount to a unilateral variation of an employee's terms of employment171 and thus provide grounds for an alternative disadvantage grievance to be brought under the Employment Relations Act.172 Such an approach would side-step the requirement for an employee to prove discrimination, and could be an attractive possibility for the claimant.
However, the fundamental question for this article is whether, under New Zealand legislation, a gender based appearance standard could constitute unlawful discrimination 'by reason of' sex under s 22 of the Human Rights Act 1993 (or s 104 of the Employment Relations Act 2000). The essential question is, therefore, whether the courts could find that a gendered dress or grooming requirement equates to a 'less favourable term of employment' than that afforded to employees in 'the same or substantially similar circumstances' as the complainant.173

Some guidance can be gleaned from the overseas jurisprudence discussed above. First of all, the issue could be resolved by following the authoritative House of Lords' approach in James, a judgment so assiduously avoided by the Court of Appeal in Safeway. As the 'by reason of' causal test, provided by the Human Rights Act, has been judicially interpreted in New Zealand to accord with the House of Lords' 'but for' causal test,174 it can readily be argued that a sex-differentiated appearance requirement (which denies an employee a specific choice that is open to the other sex)175 constitutes a 'less favourable term of employment' that has occurred 'by reason of' the employee's sex. Under this approach a grooming requirement that obliges female employees to wear make-up to work, when men are not so obliged, would contravene the legislation. Similarly, a restriction placed on the ability of men to wear makeup, or to wear dresses or skirts in the workplace, would contravene s 22 of the Human Rights Act. While such an approach is attractive for its simplicity, it must be noted that it is not explicitly premised upon the normative harms of such requirements.
In the alternative, guidance could be gleaned from the Ninth Circuit's acceptance in Jespersen that any term of employment that requires an employee to conform to an impermissible sex stereotype associated with his or her sex amounts to a 'less favourable' term of employment by reason of 'sex'. Such an approach does have stronger normative justifications, as it is explicitly premised upon the undesirability of the perpetuation of gendered norms in the workplace. Obviously, as argued above, the more progressive dissent of Judge Pregerson in Jespersen should be preferred. And, significantly, the principle of sex stereotyping has already been recognised in the New Zealand judicial system. In obiter discussion in N v F176 the Equal Opportunities Tribunal argued that discriminatory treatment driven by employer reliance on the notion that females should not have an 'assertive nature,' when this requirement was not applied to men, could have breached New Zealand's human rights legislation.177 The use of the sex-stereotyping principle to proscribe gendered dress requirements could therefore be readily adopted by the New Zealand courts.
If the New Zealand courts were to be guided by the dissent of Judge Pregerson in Jespersen, the issue does arise as to how the 'impermissible sex stereotyping' prohibited by the judgment, could be identified. Certainly, the need for the court under Jespersen to make the differentiation between permissible and impermissible gendered ideologies will pose some difficulties. Nevertheless, many scholars claim that a judicial examination of the sociological implications of a gendered appearance standard could be undertaken to investigate its normative underpinnings.178 Under this approach, any compulsory requirements for females to adhere to orthodox standards of grooming or dress would be seen as invidious, and thus proscribed. However, such an approach would initially appear to provide little protection to male employees with a female gender identity, as male dress norms serve to communicate messages of power and dominance179 and arguably might not be seen as intrinsically invidious. On the other hand, the origins of the derision accorded to males who seek to wear female attire derives from the deeply held societal beliefs in the inferiority of women.180 The argument can accordingly be made that any dress requirement that prohibits men from adopting a form of appearance open to women is inherently objectionable, as it reinforces the subordinate nature of women in society.
This inquiry into the validity of gendered stereotyping would not be required if discrimination on the grounds of gender identity was explicitly proscribed by the statute. While the Crown Law Office has asserted 'it is unnecessary to amend the Human Rights Act 1993 in order to ensure protection from discrimination on grounds of gender identity'181 this pronouncement is somewhat optimistic. The Crown Law opinion appeared to be simply based on the fact that Canadian and United Kingdom jurisprudence has established that transsexual individuals who have undergone gender reassignment procedures are to be protected from discrimination on the grounds of sex.182 While these decisions may well be of some assistance to the New Zealand courts, it is necessary to emphasise that none are binding. Moreover, it must be observed that the House of Lords decision in Chief Constable of Yorkshire v A,183 that was relied upon in the Crown Law opinion, only widened the scope of the term 'sex' to include gender-reassignment within its parameters.184 This is quite distinct from providing protection from discrimination on the wider grounds of gender identity185 and it is surprising that Crown Law reached its conclusion so confidently. As recently recognised by the Human Rights Commission, there still remains a pressing need for a statutory amendment to ensure that discrimination on the grounds of gender identity is explicitly proscribed by the statute,186 and it is by no means clear that an individual's right to the expression of gender identity is currently protected.
Thus, the discriminatory nature of dress codes may still have to be recognised pursuant to the proposed approaches analysed above. In order for the courts to focus on the discriminatory nature of a specific appearance standard, the James approach regarding the formulation of an appropriate comparator in sex discrimination claims will need to be followed. This would ensure that gender based dress requirements imposed on employees of the other sex are excluded from the determination of what constitutes a 'substantially similar circumstance' under New Zealand's legislation, and such an approach clearly accords with the broad and purposive construction of human rights legislation that is required under New Zealand law.187
It must, however, be noted that the James analysis cannot be easily reconciled with the Court of Appeal's recent decision in Air New Zealand v McAlister.188 Here it was held by the Court that an age based restriction on a pilot's ability to fly international flight paths could be purportedly compared to a hypothetical operational restriction imposed on younger pilots in its determination of what amounted to a 'same or substantially similar circumstance' under s 104(1)(a).189 The discriminatory impetus behind the age restriction therefore appeared to hold no relevance for the Court190 and the implications of the decision are unfortunate. Following McAlister, a gender based dress restriction imposed upon the other sex could well be included within the scope of the comparison needed to determine if unlawful discrimination has occurred. Regrettably, it is apparent that under McAlister the current abstracted method of comparative analysis prevailing in international legal analysis would clearly be open for the New Zealand judiciary to adopt.

The Section 27 Exception

If, however, the discriminatory nature of gendered appearance standards was to be recognised by the New Zealand courts, the issue will arise as to whether an employer is ever able to impose a gendered based dress requirement on its employees. Under s 27(1) of the Human Rights Act 'different treatment' based on sex is permissible where, for reasons of 'authenticity,' being of a particular sex is a 'genuine occupational qualification'. While no legislative or judicial guidance has been given as to the meaning of the two critical terms within the section, it is apparent that the term 'authenticity' greatly reduces the potential scope of the provision. The term arguably refers to concepts of genuineness or validity,191 and it has been argued that this will inform the nature of what could be considered to be a 'genuine occupational qualification'.192 As noted above, the New Zealand courts are likely to follow the American approach so as to exclude considerations of customer preference under this provision.193 The exception is likely to be construed very narrowly.
The term 'different treatment' under s 27 is also left undefined. It could, however, be assumed that a 'less favourable term of employment' would fall within the scope of this phrase. The question thus arises as to the circumstances under which a gender based dress requirement constituting 'different treatment' would be acceptable because, for reasons of 'authenticity', being of a particular sex is a 'general occupational qualification'. It is clear that in industries premised upon physical attributes an individual's sex is likely to amount to an authentic general occupational qualification.194 Thus, in the modelling, sex, and dramatic performance industries, an employer could require a female to comply with appearance requirements that reinforce dominant gender norms. Nonetheless, the issue arises as to whether the contention of the Employment Court in Williams, that a compulsory make-up requirement could be viably imposed upon a female cosmetic sales assistant, would survive the rigorous s 27 test. Under the Wilson framework, it is clear that an employer would be unable to argue that customers prefer to buy cosmetics from female sales assistants. Moreover, as the 'essence' of a retail sales job is to assist customers with inquiries, and to operate a cash register, it is apparent that the job could just as easily be performed by a male employee. Accordingly, the Employment Court's assertion does not appear to accord with the spirit and wording of the s 27 exception.

IX. THE WAY FORWARD

The above examination shows that the international jurisprudence surrounding the imposition of gender based standards in the workplace lacks both legal and normative soundness, and that the New Zealand courts would be therefore be ill-advised to seek guidance from it. Clearly, considerations of policy should provide the underlying impetus for the judicial proscription of gendered dress codes in New Zealand, and the possible approaches proposed in this article provide a workable framework by which the illegality of such dress policies could be recognised under New Zealand's current legislation.

However, in light of the New Zealand Court of Appeal's questionable approach towards the comparator issue in McAlister, there is a real danger that that the broad method of comparative analysis evident in both the Jespersen and Safeway decisions could be adopted by the New Zealand courts.
Accordingly, as recently acknowledged by the Human Rights Commission, the most appropriate means by which an individual's right to express his or her gender identity can be protected is through legislative intervention. The international dress code jurisprudence demonstrates that such a right will often not be recognised under any general legislative proscriptions on sex discrimination. It is therefore to be hoped that Parliament will see fit to follow the Human Rights Commission's recommendation, and amend the Human Rights Act to ensure the statute specifically provides explicit protection from discrimination on the grounds of gender identity.195 In the light of the overseas jurisprudence, such a legislative amendment appears necessary and should hopefully ensure that gendered based dress codes are rendered curious artifacts from the past.

* LLB(Hons), BA. Natasha is currently employed as a Judge's Clerk at the Court of Appeal. This paper was awarded the Canterbury Law Review prize for the best undergraduate Honours paper completed in 2008. The law discussed in this article is as at 31 January 2009.

  1. Seaman, 'The Peahen's Tale, Or Dressing Our Parts at Work' (2007) 14 Duke Journal of Gender Law and Policy 423, 424.
  2. West and Zimmerman, 'Doing Gender' in Lorber and Farrell (eds), The Social Construction of Gender (1991) 14; Oakley, Sex, Gender and Society (1972) 66.
  3. Alsop, Fitzsimons and Lennon, Theorizing Gender (2002) 116.
  4. For discussion see: Ramazanoglu, 'Heterosexuality, Biology and Why Men Stay on Top' in Maynard and Purvis, (Hetero)Sexual Politics (1995) 30; Lindesmith, Strauss, and Denzin, Social Psychology (1999) 224.
  5. Butler, Gender Trouble: Feminism and the Subversion of Identity (2nd ed 1999) 43. For general discussion see: Lloyd, 'Sexual Politics, Performativity, Parody' in Carver and Mottier (eds), Politics of Sexuality: Identity, Gender, Citizenship (1998) 125; Jagger, Judith Butler: Sexual Politics, Social Change and the Power of the Performative (2008) 5.
  6. Butler, ibid 179.
  7. West and Zimmerman, above n 2, 15.
  8. Flynn, 'Gender Equality Laws and Employers' Dress Codes' (1995) 24 Industrial Law Journal 255, 256.
  9. See generally: Aggarwal, Sex Discrimination: Employment Law and Practices (1994) 41-45; Fredman, Women and The Law (1987) 1-37; Gregory, Sex Race and The Law (1987) 1-9; Pannick, Sex Discrimination Law (1985) 1-24.
  10. Richardson, Theorizing Heterosexuality: Telling it Straight (1996) 20.
  11. Alsop et al, above n 3, 116.
  12. Bordo, Unbearable Weight, Feminism, Western Culture and the Body (1993) 16; Bartky, 'Foucault, Femininity, and the Modernisation of Patriarchal Power' in Diamond, and Quinby (eds), Feminism and Foucault: Reflections on Resistance (1988) 67; Morgan, 'Women and the Knife: Cosmetic Surgery and the Colonization of Women's Bodies' in Weitz (ed), The Politics of Women's Bodies: Sexuality, Appearance and Behavior (2003) 168-173; Wolf, The Beauty Myth (1991) 59.
  13. Devor, cited in Ponte and Gillan, 'Gender Performance over Job Performance: Body Art Work Rules and the Continuing Subordination of the Feminine' (2007) 14 Duke Journal of Gender Law and Policy 319, 359; Lurie, The Language of Clothes (1981) 215-29.
  14. Avery, 'The Great American Makeover: The Sexing Up and Dumbing Down of Women's Work' (2007) University of San Francisco Law Review 299, 301.
  15. American Psychological Association, Report of the APA Task Force on The Sexualisation of

Girls (2007) 22.

  1. Cox and Glick, 'Resume Evaluations and Cosmetic Use: When More is Not Better' (1986) 14 Sex Roles 51, 57; Yurako, 'Sameness, Subordination and Perfectionism: Towards a More Complete Theory of Employment Discrimination Law' (2006) 43 San Diego Law Review 857, 880.
  2. Oxford English Dictionary, <www.oed.com>. See generally: Hines, Transforming Gender: Transgender Practices of Identity, Intimacy and Care (2007); Stryker 'De-Subjugated Knowledge: An Introduction to Transgender Studies' in Stryker and Whittle (eds), The Transgender Studies Reader (2006); Halberstam, In A Queer Time and Place: Transgender Bodies, Subcultural Lives (2005).
  3. Human Rights Commission, To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People (press release, 18 January 2008) [8.1].
  4. McCarthy, 'Trans Employees and Personal Appearance Standards under Title VII' (2008) 50 Arizona Law Review 939, 924; Chow, 'Smith v City of Salem: Transgendered Jurisprudence and an Expanded Meaning of Sex Discrimination under Title VII' (2005) 28 Harvard Journal of Law and Gender 207, 215.
  5. Sometimes hereafter referred to as 'the Act'.
  6. Long Title to the Act. See generally: Director of Human Rights Proceedings v Cropp (HC,

Auckland AP7-SW03, 12 May 2004, Baragwanath and Harrison JJ) 17.

  1. See, for example, UN Convention on Discrimination in Respect of Employment and Opportunity 1958, Art 2; Universal Declaration of Human Rights 1948, Art 23; International Covenant on Economic, Social and Cultural Rights 1976, Art 7.
  2. The relevant provision of s 22 of the Act provides:

...

(b) To offer or afford the applicant or the employee less favourable terms of employment, conditions of work, ... than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description;

...

by reason of any of the prohibited grounds of discrimination.

  1. The relevant provision of s 104(1) provides that an employee is discriminated against where the employer by reason directly or indirectly of any of the prohibited grounds of discrimination specified in s 105:

(a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work ...as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances.

Note, while this requirement of the 'same terms of employment' appears less stringent than the 'less favourable' standard provided by s 22 of the Human Rights Act the Equal Opportunities Tribunal did note that the comparable term under s 15(1)(b) Human Rights Commission Act 1977 bore similarity to the standard of less favourable treatment: Proceedings Commissioner v Air New Zealand Ltd [1998] 7 NZAR 462, 470.

  1. Employment Relations Act 2000, s 103(1)(c). Note, any grievance that amounts to a discrimination, or raises a strong presumption of discrimination, might also be brought as a case of unjustified dismissal or unjustified disadvantage under ss 103(1)(a) or (b), which would not require the claimant to prove that discrimination has occurred. See Mazengarb Employment Law (hereafter Mazengarb) [104.3].
  2. This is repeated as a prohibited ground under the Employment Relations Act 2000, s 105(1)(a).
  3. See: Brookers Human Rights Law [21.10 (9)]; Mazengarb [4021.10].
  4. Employment Court, Auckland AC 72/06, 12 December 2006, Judge Perkins. Hereafter, Williams.
  5. As noted in Williams v Kimberleys Fashions Limited (Employment Relations Authority AA 300/05, 8 August 2005), 4.
  6. Williams, above n 28, [30].
  7. Ibid [45].
  8. Ibid [48].
  9. Ibid [49].
  10. Ibid [49].
  11. 42 U.S.C 2000e(2) (a)(1).
  12. As outlined in International Bhd of Teamsters v United States, [1977] USSC 90; 431 U.S 324, 335 (1997) (Supreme Court). Direct discrimination is labeled 'disparate treatment' in the United States. See generally: Gregory, Women and Workplace Domination: Overcoming Burdens to Gender Equality (2003) 2.
  13. Note, as both the Human Rights Act 1993 and Employment Relations Act 2000 define unlawful discrimination under s 22 and s 104, respectively, conceptual debates surrounding the definition of discrimination, such as those outlined in CPAG v Attorney General (Human Rights Tribunal, 16.2.08, Decision 31/08) [116]-[119], do not arise in the same way. This was noted in Air New Zealand v McAlister [2008] NZCA 264, [45].
  14. A discrimination claim on the grounds of disparate impact can be brought when an employer's practice is 'facially neutral ... but ... in fact fall[s] more harshly on one group than another': International Bhd of Teamsters v United States, [1977] USSC 90; 431 U.S 324, 335. Note, this is similar to the indirect discrimination prohibited by the Human Rights Act 1993, s 25 and the Employment Relations Act 2000, s 104. See generally: Brookers Human Rights Law [65.01]-[65.10]; Mazengarb [4065.3]-[4065.9.4] and [1045]; Mize, 'Indirect Discrimination Reconsidered' [2007] New Zealand Law Review 27.
  15. See generally: Case, 'Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence' (1995) 105 Yale Law Journal 1, 5; McCarthy, n19, 952. This argument is likely to be applied in the New Zealand context.
  16. [1989] USSC 85; 109 S Ct 1775; 490 U.S. 228, (1989). Hereafter referred to as 'Price Waterhouse'.
  17. Ibid 1782.
  18. Ibid 1783.
  19. See generally: Goodsell, 'Toward Real Workplace Equality: NonSubordination and Title VII Sex-Stereotyping Jurisprudence' (2008) 23 Wisconsin Journal of Law, Gender & Society 41, 41; Franke, 'The Disaggregation of Sex from Gender' (1995) 144 University of Pennsylvania Law Review 1, 95.
  20. Price Waterhouse, above n 40, 1785.
  21. Ibid 1791.
  22. [2006] USCA9 195; 444 F.3d 1104 (9th Cir. 2006).
  23. See, for example, Lewis v Heartland Inns of America (Iowa District Court, No 4:07-CV-00287, Nov 13, 2008).
  24. It must be noted that under New Zealand law, for employment policies to be incorporated as terms of employment contracts, the policies, and their notification, must be 'fair and reasonable': Carter Holt Harvey v Pawson [1998] NZEmpC 38; [1998] 2 ERNZ 1, per Judge Colgan, and an employer's attempt to change employment policies that change existing terms and conditions of employment requires the consent of employees: NZALPA v Air New Zealand Ltd [1991] NZEmpC 62; [1992] 1 ERNZ 880. The purported unilateral variation of terms without the employee's consent could give thus give rise to an unjustifiable disadvantage grievance under s 103(1)(b) of the ERA. See generally: Brookers Employment Law [103.27(2)(b)-(4)]; Mazengarb [103.69] and following.
  25. Above n 46, 1107.
  26. Ibid 1107.
  27. It is recognised that the test has added a gloss to the meaning of less favourable treatment. See generally: Shin, 'Vive La Difference? A Critical Analysis of the Justification of Sex-Dependent Workplace Restrictions on Dress and Grooming' (2007) 14 Duke Journal of Gender Law and Policy 491, 506.
  28. See, for example, Baker v California Land Title Co, [1974] USCA9 557; 507 F.2d 895 (9th Cir.1975); Earwood v Continental Southeastern Lines Inc, 594 F.2d 1349, (4th Cir. 1976); Knott v Mo Pac RR Co, [1976] USCA8 53; 527 F.2d 1249 (8th Cir. 1975); Willingham v Macon TelPubl’g Co, 507 F.2d 1054 (5th Cir.1975); See generally: Williamson, 'Moving Past Hippies and Harassment: A Historical Approach to Sex, Appearance and the Workplace' (2006) Duke Law Journal 681, 692.
  29. Levi, 'Misapplying Equality Theories: Dress Codes at Work' (2008) 19 Yale Journal of Law and Feminism 353, 353; Conway, 'Leaving Employers in the Dark: What Constitutes A Lawful Appearance Standard after Jespersen v Harrahs Operating Co?' (2007) George Mason University Civil Rights Journal Association 107, 115.
  30. Carroll v Talman Fed Sav & Loans Ass'n of Chicago, [1979] USCA7 555; 604 F.2d 1028 (7th Cir. 1979); O'Donnell v Burlington Coat Factory Warehouse Inc, 929 F. Supp. 263 (S.D. Ohio 1987).
  31. EEOC v Sage Realty Corp, 507 F.Supp.599 (S.D.N.Y.1981).
  32. Gerdom v Continental Airlines Inc, [1982] USCA9 1965; 692 F.2d 602 (9th Cir. 1982).
  33. Levi, above n 53, 363-364.
  34. [2000] USCA9 335; 216 F.3d 845 (9th Cir. 2000).
  35. Ibid 854-55.
  36. Jespersen, above n 46, 1109.
  37. Ibid 1109.
  38. Ibid 1109.
  39. Ibid 1110.
  40. Ibid 1117.
  41. Ibid 1117. Note, it has been established that women spend approximately five and a half hours a week on grooming. 'How We Spend Time' Time Magazine ( 30 October 2006) 53.
  42. Ibid 1117.
  43. Rhode, 'The Subtle Side of Sexism' (2007) 16 Columbia Journal of Gender Law and Policy 613, 630; Wolf, above n 12, 254.
  44. Jespersen, above n 46, 1116.
  45. Jespersen v Harrah's Operating Co, 280 F. Supp.2d, 1190.
  46. See Lifson-Leu, 'Enforcing Femininity: How Jespersen v Harrah's Operating Co. leaves women in Typically Female Jobs Vulnerable to Workplace Sex Discrimination' (2008) 42 University of San Francisco School of Law 849, 876.
  47. In O'Donnell, above n 54, it was suggested it was demeaning for one sex to wear a uniform when members of the other sex holding the same position were allowed to wear professional business attire.
  48. For comment see: Friedman, 'Gender Non-Conformity and the Unfulfilled Promise of Price Waterhouse v Hopkins' (2007) 14 Duke Journal of Gender Law and Policy 205, 210; Steinle, Appearance and Grooming Standards as Sex Discrimination in the Workplace' (2007) 56 Catholic University Law Review 261; 286; Kelly, 'Making-Up Conditions of Employment: The Unequal Burdens Test As A Flawed Mode of Analysis in Jespersen v Harrah's Operating Co' (2006) Golden Gate University Law Review 45, 60; Avery, above n 14, 316.
  49. As argued by Judge Kozinski, Jespersen, above n 46, 1118. See also Kelly, ibid, 60; Miller, 'Lost in the Balance: A Critique of the Ninth Circuits Unequal Burdens Approach to Evaluating Sex-Differentiated Grooming Standards Under Title VII' (2006) North Carolina Law Review 1356, 1365.
  50. Williamson, above n 52, 707.
  51. Raskin, 'Sex Based Discrimination in the American Workforce: Title VII and the Prohibition Against Gender Stereotyping' (2006) 17 Hastings Women's Law Journal 247, 257.
  52. See criticism in Pizer, 'Facial Discrimination: Darlene Jespersen's Fight Against the Barbie-Fixation of Bartenders' (2007) 14 Duke Journal of Gender Law and Policy 285, 303; Seaman, 'The Peahen's Tale, Or Dressing Our Parts at Work' (2007) 14 Duke Journal of Gender Law and Policy 423, 433.
  53. It is important to note that 'less favourable treatment' under Title VII can be established when the complainant is compared to an employee of the other sex who is 'similarly situated.' See, for example, Marshall v American Hospital Association, [1998] USCA7 890; 157 F.3d 520 (7th Cir. 1995). This bears similarity to the comparison that must be made between the complainant and an employee in the 'same or substantially similar circumstances' mandated under s 22(1)(b) Human Rights Act and s 104(1)(a) of the Employment Relations Act.
  54. Significantly, the possibility that discrimination on the basis of stereotypes associated with an individual's sex could amount to sex discrimination has been recognised under New Zealand's legislation. See N v F (EOT, Decision NO 2/91, EOT 15/89, 14 August 1991, H Sargisson, Chairperson, CWP Pascoe, and LM Wilson, members). See also: Proceedings Commissioner v Armourguard Security (1992) EOC 92-412; Proceedings Commissioner v Boakes (EOT Decision 1/94, EOT 14/92, 13 April 1994).
  55. See Friedman, above n 60, 205. Also see, Case, above n 39, 61; McGinley 'Exclusive Hiring Arrangements and Sexy Dress Codes' (2007) 14 Duke Journal of Gender Law and Policy 257, 261.
  56. Jespersen, above n 46, 1112.
  57. Seaman, above n 1, 436.
  58. As noted by Judge Pregerson, Jespersen, above n 46, 1115.
  59. Ibid 1112.
  60. Ibid 1116.
  61. Ibid 1116.
  62. As noted in Steinle, above n 72, 294.
  63. Cruz, 'Making Up Women' (2004) 5 Nevada Law Journal 240, 257; Miller, above n 73, 1370.
  64. Ulane v Eastern Airlines Inc, [1984] USCA7 784; 742 F.2d 1081, 1085 (7th Cir. 1985). See also: Holloway v Arthur Anderson & Co, [1977] USCA9 1320; 566 F.2d 659 (9th Cir. 1977); Sommers v Budget Marketing Inc, [1982] USCA8 15; 667 F.2d 748 (8th Cir. 1982).
  65. [2004] USCA6 278; 378 F.3d 566 (6th Cir. 2004).
  66. Ibid 573. See also: Barnes v City of Cincinnati, [2005] USCA6 138; 401 F.3d 729 (6th Cir. 2005). This principle has been also been applied in sexual harassment cases. See: Rene v MGM Grand Hotel Inc, [2002] USCA9 736; 305 F.3d 1061, 1068-69 (9th Cir. 2002); Nichols v Azteca Restaurant Enterprises Inc, 256 F.3d 854, 874 (9th Cir. 2001).
  67. Ibid 575.
  68. Section 27 of the Human Rights Act provides an exception for direct discrimination where, for reasons of authenticity, being of a particular sex is a general occupational qualification. This is reflected in the Employment Relations Act 2000, s 106(1)(d).
  69. Brookers Employment Law [27.04 (3)], [27.04(7)].
  70. 42 U.S.C. 2000(e)-(2)(e)(1).
  71. Dothard v Rawlinson, [1977] USSC 144; 433 U.S 321, 334 (1977).
  72. See for example, Diaz v Pan American World Airways Inc, 442 F.2d 385 (5th Cir. 1971); Fernandez v Wynn Oil, [1981] USCA9 1232; 653 F.2d 1273, 1276 (9th Cir. 1981).
  73. 517 F.Supp 292 (N.D. Tex. 1981).
  74. Ibid 303.
  75. Ibid 303.
  76. For example, Health and Safety: Bhatia v Chevron USA Inc, 745 F 2.d 1382, (9th Cir. 1984); Privacy in Healthcare: Backus v Baptist Medical Centre, 510 F.Supp 1191, 1192-93 (E.D Ark

1981).

  1. Appeal No 773 Case No Cfs. 22618-70.
  2. Cited in Wilson, above n 97, 301. For criticism see: Yurako, 'Private Nurses, Playboy Bunnies and Explaining Permissible Sex Discrimination' (2004) 92 California Law Review 147, 172-179.
  3. The job description is provided in Raskin, above n 75, 262.
  4. Indirect discrimination is also prohibited under the Sex Discrimination Act pursuant to s (1)(1)(b), but, as discussed in the text, challenges to sex distinct dress codes will be brought as direct discrimination claims. For discussion of this point in the English context see: Wintemute, 'Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes' (1997) 60 Modern Law Review 334, 337.
  5. [1996] IRLR 456; [1996] ICR 868.Hereafter 'Safeway.
  6. [1977] IRLR 360; [1978] ICR 85. Hereafter 'Schmidt'.
  7. Section 5(3) of the Sex Discrimination Act provides that any comparison undertaken under
    s (1) 'requires the relevant circumstances in the one case are the same, or not materially
    different, in the other'. This bears similarity to the comparison that must be made between
    the complainant and an employee in the 'same or substantially similar circumstances'
    mandated under the Human Rights Act 1993, s 22(1)(b) and the Employment Relations Act
    2000, s 104(1)(a).
  8. Schmidt, above n 106, 88.
  9. Ibid 88.
  10. [1995] ICR 472, 481.
  11. Safeway, above n 105, 877.
  12. Ibid 877.
  13. Ibid 878.
  14. Ibid 879.
  15. [2004] IRLR 248. Hereafter 'Thompson’.
  16. Case No 24 05602102, [83].
  17. Thompson, above n 115. [30].
  18. [1990] UKHL 6; [1990] 2 All ER 607. Hereafter, 'James'.
  19. Ibid 618.
  20. G Bastin, 'Equity Varies With the Length of the Applicant's Hair' (1997) 2 Journal of Civil Liberties 115, 120.
  21. Section (6)(2)(b). For a useful outline of the required elements of a discrimination claim under the Sex Discrimination Act see Thompson, above n 115, [15]. Note this is a different framework from the New Zealand legislation where a dismissal or detriment that occurs by reason of a prohibited ground is a separate ground of unlawful discrimination under the Human Rights Act 1993, s 22(1)(c) or the Employment Relations Act 2000, s 104(1)(b).
  22. R v Birmingham CC, ex P EOC [1989] IRLR 173, 175 (HL).
  23. See Pitt and Clayton, 'Dress Codes and Freedom of Expression' (1997) European Human Rights Law Review 54, 63; Flynn, above n 8, 262; Palmer, Moon and Cox, Discrimination at Work: The Law on Sex, Race, and Disability Discrimination (3rd ed, 1997) 32; Wintemute, above n 104, 337.
  24. James, above n 118, 611 per Lord Bridge, and 617 per Lord Goff.
  25. See McColgan, Discrimination Law (2nd ed, 2005) 484; Wintemute, above n 104, 334.
  26. Thompson, above n 115, [26].
  27. Ibid [21].
  28. Safeway, above n 105, 876, 878.
  29. For background to the Sex Discrimination Act, see White Paper — Equality for Women 1974. For a helpful explanation of the legislative background to the Act generally see: K O'Donovan and E Szyszczak, Equality and Sex Discrimination Law (1988) 21-47.
  30. (unreported, 1 June 1990).
  31. Cited in Safeway, above n 105, 877.
  32. Ibid 879.
  33. Ibid 878.
  34. Carroll v Talman Fed Sav & Loans Ass'n of Chicago, above n 54; O'Donnell v Burlington Coat Factory Warehouse Inc, above n 54.
  35. Burrett v West Birmingham Health Authority [1994] IRLR 7. For comment on the decision, see Cunningham, (1995) 24 Industrial Law Journal 177. However, a different approach to the imposition of solely female dress requirements was taken in Stoke-on-Trent Community Transport v Cresswell EAT/359/94, noted in Flynn, above n 8, 261.
  36. See generally: McColgan, 'Cracking the Comparator Problem: Discrimination, 'Equal' Treatment and the Role of Comparisons' (2006) European Human Rights Law Review 650, 650; Westen, 'The Empty Ideal of Equality' (1982) 95 Harvard Law Review 536, 545; Gregory, above n 9, 12-30; Fraser, 'The Jurisprudence of Equality and Canada and New Zealand's International Human Rights Obligations' in Judicial Seminar on Gender Equity (1997) 7; Fredman, Discrimination Law (2002) 7.
  37. Westen, ibid, notes 'equality is entirely circular. It tells us to treat people alike, but when we ask who "like people" are, we are told they are "people who should be treated alike".' (at 547).
  38. Fredman, above n 136, 8.
  39. Ibid 8.
  40. McColgan, above n 136, 656.
  41. Fredman, above n 136, 98.
  42. For the comparison required to establish less favourable treatment in America, see above n 77; for the comparison required in England, see above n 107.
  43. Wintemute, above n 104, 355.
  44. Above, n 54.
  45. Ibid 1032.
  46. See generally, Bartlett, 'Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms and Workplace Equality' (1994) 92 Michigan Law Review 2541; Klare, 'Power/Dressing: Regulation of Employee Appearance' (1992) 26 New England Law Review 1395, 1420.
  47. Selmi, 'The Many Faces of Darlene Jespersen' (2007) 14 Duke Journal of Gender Law and Policy 467, 481.
  48. Hamm v Weyauwega Milk Products Inc, [2003] USCA7 289; 332 F.3d 1058, 1067 (7th Cir. 2003).
  49. Jespersen, above n 46, 1109.
  50. Safeway, above n 105, 878.
  51. P v S [1996] ICR 795.
  52. Regulation 2A(1) provides that a person (A) discriminates another person (B) if he treats B less favourably than he treats or would treat other persons, and does so on the grounds that B intends to undergo, is undergoing or has undergone gender reassignment. For general explanation of the amendment see: McColgan, above n 125, 711-719.
  53. Above n 105, 482.
  54. [1973] USCADC 379; 157 U.S.App.D.C. 15, 481 F.2d 1115, (1973).
  55. Ibid 1124-25.
  56. As noted by Pizer, above n 75, 303, referring to the case of Oiler v Winn Dixie Stores Inc, (BNA) 1832 (E.D.La) 2002.
  57. Jespersen, above n 46, 1112.
  58. [1978] QB 233.
  59. Schmidt, above n 106, 88.
  60. Jeremiah v Ministry of Defence [1980] ICR 13.
  61. Bastin, above n 120, 119-120.
  62. Safeway, above n 105, 881, per Peter-Gibson LJ.
  63. Section 7(1)(a) of the Sex Discrimination Act provides that the statuory 'general occupational defence' can only be relied upon in instances where discrimination has occurred pursuant to the employer's determination of who should be employer, or by refusing or deliberately omitting to offer employment.
  64. As noted by Wintemute, above n 104, 356.
  65. It was noted by Lord Goff in James, above n 118, 619, that questions of intention, motive and purpose hold no relevance in the determination of direct discrimination claims under s 1(1)(a) of the Sex Discrimination Act. See further Pitt and Clayton, above n 123, 62.
  66. Selmi, above n 147, 481.
  67. Safeway, above n 105, 1112.
  68. Skidmore, 'Sex, Gender and Comparators in Employment' (1997) 26 Industrial Law Journal

51, 55.

  1. Williams, above n 28, [49].
  2. See, for example: Proceedings Commissioner v NZ Post Ltd [1992] NZAR 111; Proceedings Commissioner v Air NZ Ltd (1987-1989) 7 NZAR 462. See generally: Clay Cross (Quarry Service) v Fletcher [1979] 1 All ER 474, 477 per Lord Denning.
  3. For employment policies to be incorporated into employment contracts the policies and their notification must be 'fair and reasonable' Carter Holt Harvey v Pawson [1998] NZEmpC 38; [1998] 2 ERNZ 1 per Judge Colgan. In NZALPA v Air New Zealand Ltd [1991] NZEmpC 62; [1992] 1 ERNZ 880 the Employment Court held that discretionary changes of policies would require the consent of employees if they affected existing terms and conditions of employment. For general discussion, see Mazengarb [1018A].
  4. See generally: Brookers Employment Law [103.27(2)(b)-(4)]; Mazengarb [103.69] and following. Note, the Employment Court in Williams, at [45], did appear to recognise that the make-up requirement could not be unilaterally imposed, through its introduction under house rules, as it was judicially recognised that the employer's attempts to introduce the requirement as part of the house rules had not been communicated to the complainant, and had not been agreed to as a variation of the complainant's contract.
  5. Human Rights Act 1993, s 22(1)(b) ; or under s 104(1)(a) Employment Relations Act 2000 whether the complainant has been offered the 'same terms' of employment. See discussion, n 24.
  6. H v E (1985) 5 NZAR 333, affirmed in Transportation Auckland Corporation Ltd v Proceedings Commissioner [1998] 1 ERNZ 282 (HC). See generally Brookers Human Rights Law [22.13]. It must, however, be noted that judicial preference for the 'substantial and operative factor' test has recently been demonstrated. See Claymore Management Ltd v Anderson [2003] 2 NZLR 537, discussed in Mazengarb [4022.16.4]. As this causal test is less stringent, it would also satisfy the approach.
  7. The term 'less favourable' has not been defined by the New Zealand courts. See Brookers Human Rights Law [22.07]. The proposed interpretation is influenced by the approach taken by the House of Lords towards the term in R v Birmingham CC, ex P EOC [1989] IRLR 173, as discussed above.
  8. EOT, Decision NO 2/91, EOT 15/89, 14 August 1991, H Sargisson, Chairperson, CWP Pascoe, and LM Wilson, members. See also Proceedings Commissioner v Armourguard Security (1992) EOC 92-412; Proceedings Commissioner v Boakes (EOT Decision 1/94, EOT 14/92, 13 April 1994).
  9. Ibid 13.
  10. See, for example, Bartlett, above n 146, 2570; Miller, above n 73, 1366.
  11. Buchbinder, Masculinities and Identities (2004) 36.
  12. Case, above n 39, 7.
  13. Crown Law Opinion on the Human Rights (Gender Identity) Amendment Bill (2 August 2006). This opinion was commissioned to examine whether a Private Member's Bill to introduce gender identity as a prohibited ground of discrimination under the Human Rights Act was necessary. The opinion led to the withdrawal of the Bill.
  14. Ibid [29]. Reliance was placed on Chief Constable of West Yorkshire Police v A [2004] UKHL 21; [2005] 1 AC 51 (HL), and Vancouver Rape Relief Society v British Columbia Human Rights Commission and British Columbia Human Rights Tribunal (2003) 35 CHRR 390.
  15. [2004] UKHL 21; [2005] 1 AC 51 (the decision was decided without reference to the Sex Discrimination (Gender Reassignment Regulations) 1999).
  16. Ibid [56].
  17. For many transgendered individuals surgery is not required for the expression of their gender identity. See Report on the Inquiry into Transgendered Discrimination, above n 18, [8.23].
  18. Ibid [9.50].
  19. See Quilter v Attorney General [1997] NZCA 207; [1998] 1 NZLR 523, 575.
  20. [2008] NZCA 264.
  21. Ibid [93]; also see paras [20]-[92]. Note, the New Zealand Supreme Court has granted leave to appeal this aspect of the decision [2008] NZSC 16.
  22. For general commentary on the decision see: Hughes, [2008] Employment Law Bulletin 80. It must be noted that the Human Rights Review Tribunal in CPAG v Attorney General (Human Rights Tribunal, 16.2.08, Decision 31/08) observed that in the analysis of discrimination a 'search for precise exactness of circumstances' carries a 'risk of injustice' and indicated a purposive approach should be taken towards the comparator issue under the New Zealand Bill of Rights Act 1990.
  23. See Brookers Human Rights Law [27.01-07]; Mazengarb [4027-2]. Under the Sex Discrimination Act 1975 (UK), s 7(2)(a), an exception is provided if 'in a dramatic performance or other entertainment, for reasons of authenticity, the essential nature of the act would be materially different if carried out' by a member of the other sex. It has been argued that the authenticity requirement provides inadequate protection for female actors, and that a model of 'societal casting' should be developed: see Pitt, 'Madam Butterfly and Miss Saigon: Reflections on Genuine Occupational Qualifications' in Dine and Watt (eds), Discrimination Law: Concepts, Limitations and Justifications (1996) 198-206.
  24. Mazengarb [4027.4.2].
  25. Above n 93.
  26. Mazengarb [4027.4.3].

195 Report on the Inquiry into Transgendered Discrimination, above n 18, [9.50].


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