THANK YOU, SARAH PALIN, FOR REMINDING US: IT‘S NOT ABOUT THE CLOTHES

Jane M. Siegel

CONTENTS

Introduction ...... 144 I. The Media Reflects Our Obsession ...... 147 II. The Obsession with Women‘s Looks is Biological and Historical .. 151 III. The Law Reflects Our Obsession with a Woman‘s Appearance .... 157 IV. Women Have Tried to Manage this Obsession with Appearance by Fitting In: Assimilation ...... 166 V. What‘s a Woman to do? A Multi-Level Approach ...... 174 Conclusion ...... 178

INTRODUCTION

On March 8, 2009, New York Times columnist Maureen Dowd reported widespread criticism of First Lady Michelle Obama for wearing sleeveless dresses.1 During Hillary Clinton‘s years as First Lady, senator, and presidential candidate, her pantsuits became a continuing joke.2 And during the 2008 presidential campaign, Republican vice-presidential candidate Sarah Palin was ridiculed for her shopping sprees and expensive wardrobe.3

We are obsessed with what women wear. And the closer a woman is to power – political, corporate, financial, or legal – the more obsessed we are. This obsession with women‘s clothing (and hair and makeup) may be good for the fashion and cosmetics industries, but it‘s bad for women. Because every time we talk about a woman‘s appearance, we‘re not talking about her brains. We‘re not talking about her talents. And we‘re not talking about her beliefs, her actions in the world, or her future. To focus on a woman‘s appearance is to diminish her substance. It reduces her to an object to be decorated, or, as in Sarah Palin‘s case, to a package to be accepted or rejected.

 Associate Professor, Thomas M. Cooley Law School, Grand Rapids, MI. 1 Maureen Dowd, Should Michelle Cover Up?, THE NEW YORK TIMES, March 8, 2009, at WK-10, available at http://www.nytimes.com/2009/03/08 /opinion/08dowd.html. See also Robin Givhan, Baring Arms, THE NEW YORKER, (Mar. 16, 2009) at 88 (discussing the cultural impact of Michelle Obama‘s arms). 2 See e.g., Christine Craft, The hidden ―ism,‖ SAN FRANCISCO CHRONICLE, Feb. 29, 2008, at B-13, available at http://sfgate.com/cgibin/article.cgi?f= /c/a/2008/02/29/EDENVAGCM.DTL. 3 See e.g., Sam Stein, Palin Clothes Spending has Dems Salivating, Republicans Disgusted, HUFFINGTON POST, Oct. 22, 2008, available at http://www.huffingtonpost.com/2008/10/22/palinclothesspendingha_n_136740. html. Fall 2009] It’s Not About the Clothes 145

We do serious harm to ourselves and others when we diminish women in this way.4 This harm perpetuates stereotypes and biases – and it leads to discrimination. Discrimination in employment, when it is based on sex, is illegal under Title VII.5 But being obsessed with a women‘s clothing is not illegal; to some, it‘s merely ―fashion.‖6 In enacting Title VII, Congress did not prohibit ―mere discriminatory thoughts.‖7 When thoughts produce action, though, courts have recognized ―appearance discrimination.‖8

The United States Supreme Court considered appearance discrimination in Price Waterhouse v. Hopkins.9 Anne Hopkins did not make partner at the Big Eight accounting firm because she wasn‘t feminine enough.10 In the more recent Ninth Circuit case, Jespersen v. Harrah’s, bartender Darlene Jespersen was fired because she refused to wear makeup and style her hair as Harrah‘s Casino dictated.11

Both women did not fit their employers‘ stereotypical views of what a woman should look like. Both women were very good at their jobs.12 Both women had been employed at those jobs for many years.13 Anne Hopkins eventually won her case; Darlene Jespersen ultimately lost.14

In the practice of law, women dress like men. Look at the business announcements in your newspaper; look at the photos. I bet you can pick out the lawyers: the men and women look the same. They sport conservative hairstyles. They wear dark suits with light shirts. The men wear dark ties. The women wear small, nondescript jewelry or none at all. The women have adopted the male uniform.

4 See e.g., Dahlia Lithwick, Blonde-Sided: Are prominent conservative pundits really in a catfight over body fat?, SLATE, Mar. 17, 2009, http://www.slate.com/id/2213992. 5 Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (2009). 6 SUSAN B. KAISER, THE SOCIAL PSYCHOLOGY OF CLOTHING 4 (2d ed., Fairfield Publications 1997). Kaiser defines fashion as ―a dynamic social process.‖ Id. 7 Price Waterhouse v. Hopkins, 490 U.S. 228, 262 (1989) (O‘Conner, J. concurring in judgment). 8 See e.g., William R. Corbett, The Ugly Truth about Appearance Discrimination and the Beauty of Our Employment Discrimination Law, 14 DUKE J. GENDER L. & POL‘Y 153 (Jan. 2007). 9 490 U.S. 228 (1989). 10 Id. at 235. 11 Jespersen v. Harrah‘s Operating Co.,444 F.3d 1104 (9th Cir. 2006) (en banc). 12 Ann Hopkins brought in a $25 million client, the Dept. of Defense, for her firm. See infra note 15, p. 155. Darlene Jespersen had an ―exemplary record.‖Jespersen, 444 F.3d at 1107. 13 Price Waterhouse, 490 U.S. at 233 (5 years); Jespersen, 392 F.3d at 1077 (nearly 20 years). 14 Hopkins v. Price Waterhouse, 920 F.2d 967 (D.C. Cir. 1990); Jespersen, 444 F.3d at 1106. 146 Virginia Journal of Social Policy & the Law [Vol. 17:1

Some commentators call this assimilation; Professor Kenji Yoshino calls this ―covering.‖15 He writes that women act less feminine to avoid calling attention to themselves, especially as mothers and potential mothers.16 Women don‘t stand out as the feminine ―other‖ because it makes those in the majority (and in power) uncomfortable.17 And because an overly masculine woman makes people uncomfortable, too, women ―reverse cover‖ (think Marcia Clark in pink).18

So what‘s a woman to do? Should she assimilate by looking and acting more like a man to make people, such as her employer, more comfortable? Or should she match her employer‘s view of what is feminine? Should a woman in the public sphere—like Obama, Clinton, and Palin—make dress choices calculated to make the public more comfortable?

The solution probably does not lie within existing anti- discrimination law.19 And it is not a quick fix. It lies within us, women and men, to push ourselves and others in power and in the media to transform our thinking about women. ―Until women, and society generally, hold more realistic and less demanding expectations for women, neither ‗choice‘ nor equality is possible.‖20

This article will first review the evidence of our obsession with women‘s appearance and clothing, as demonstrated by the media. Second, it will examine the biological and historical roots of the obsession. Third, it will discuss how the law has addressed discrimination based on a woman‘s appearance. Fourth, it will present women‘s efforts to manage the obsession, looking particularly at women lawyers. Finally, it will explore solutions, discussing recent scholarship and law.

15 KENJI YOSHINO, COVERING, THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS (Random House 2006). 16 Id. at 150. 17 Id. 18 Id. at 147-154. 19 Deborah L. Rhode, The Subtle Side of Sexism, 16 COLUM. J. GENDER & L. 613, 634 (2007). 20 Id. at 633. Fall 2009] It’s Not About the Clothes 147

I. THE MEDIA REFLECTS OUR OBSESSION

In 1872, an editorial in The New York Times described presidential candidate Victoria Woodhull as wearing ―dainty high-heeled boots.‖21 In 1999, another Times reporter wrote that Elizabeth Dole was ―clad in a violet suit.‖22 The media‘s obsession with women‘s clothes is not new or isolated. Anecdotal evidence, documented by several researchers, shows that the media pays more attention to the appearance of women candidates.23 When Geraldine Ferraro took the stage before the Democratic convention in 1984, NBC news-anchor Tom Brokaw said, on air, ―The first woman to be nominated for Vice President . . . Size six!‖24 In February 2000, Arkansas senator Blanche Lincoln said that ―it doesn‘t matter what I say about an issue. If I have a run in my pantyhose, that‘s all anybody will talk about.‖25

Social- and political-science researchers have conducted systematic studies that compare press coverage of women with men, and these studies have found the press more attentive to women‘s appearances.26 A study of the presidential campaigns of eight American women from 1872 to 2004 found that women candidates were more likely than men to have their clothing written about in the press.27 If the press commented at all on the men‘s appearances, it was usually about their ages.28 Clothing was the first or second most frequently described characteristic for the women in four of the eight races analyzed.29 But it was first or second in only one of eight male races.30

By including more descriptions of the women candidates‘ clothing, the press reinforced the idea that women are objects of beauty and not actors in politics.31 This coverage trivialized the women‘s campaigns and demonstrated the ―unconscious ideology that women are valued by their appearance.‖32

21 ERICA FALK, WOMEN FOR PRESIDENT; MEDIA BIAS IN EIGHT CAMPAIGNS 83 (U. of Illinois Press 2008). 22 Id. 23 Id. at 84-85. 24 Id. at 85. 25 ELEANOR CLIFT & TOM BRAZAITIS, MADAME PRESIDENT: WOMEN BLAZING THE LEADERSHIP TRAIL xiii (Routledge 2003). The remark was noted by Sen. Hillary Clinton. Id. 26 FALK, supra note 21, at 85. 27 Id. at 88, 96. 28 Id. at 89, 96. 29 Id. at 88. 30 Id. 31 Id. at 96. 32 Id. 148 Virginia Journal of Social Policy & the Law [Vol. 17:1

These descriptions of women‘s clothing, in the press for over more than a century, are remarkably similar.33 In 1872, Woodhull was ―arrayed in a plain black dress.‖34 In 1884, Belva Lockwood was ―[a]ttired in figured black silk.‖35 In 1964, Margaret Chase Smith wore ―a black suit.‖36 In 1972, Shirley Chisholm wore ―a black and white block print suit.‖37 In 1987, Patricia Schroeder wore a ―breezy blue outfit.‖38 In 1999, Dole ―dressed in a bright red suit.‖39 And in 2003, Carol Mosely Braun was ―resplendent in a dark suit.‖40 The similarity suggests that the women‘s clothing was significant because of ―some underlying value about what aspects of women are important.‖41 The same attention to women‘s appearances occurred in lower-level political campaigns, such as senatorial and gubernatorial races, and even internationally.42

The author of the presidential-campaign study came to the ―sad conclusion‖ that, even though the number of women in public office changed in 130 years, ―the propensity of the press to comment on clothing has not.‖43 A woman‘s appearance is important to the media, and it‘s important to voters. In October 2008, Northwestern University published the findings of its survey of voter behavior.44 The study found that both male and female voters required that a male candidate appear competent. But voters of both sexes required that a female candidate appear competent and attractive.

It‘s a chicken-and-egg problem: Does the media cover appearance because its consumers want it to? Or do we consider appearance because the media tells us to?

33 Id. at 90. 34 Id. 35 Id. 36 Id. 37 Id. 38 Id. 39 Id. 40 Id. 41 Id. 42 Id. at 83, 84-86. 43 Id. at 14, 90, 44 Joan Y. Chiao, Nicholas E. Bowman & Harleen Gill, The Political Gender Gap: Gender Bias in Facial Inferences that Predict Voting Behavior, PLOS ONE, (2008), http://www.dx.plos.org/10.1371/journal.pone.0003666. Fall 2009] It’s Not About the Clothes 149

2008 Democratic presidential candidate and now Secretary of State Hillary Clinton has had miles of coverage over the years devoted to her pantsuits.45 In a Newsweek column, Clinton received a thumbs-up this way: ―Her ‗smart power‘ foreign policy fits her like a nice pantsuit.‖46 Clinton was the only woman listed that week (of ten), and she was the only person listed by first name, not surname.47

On Clinton‘s first trip as Secretary of State to Asia, a South Korean journalist asked her how she managed to look ―very young and energetic‖ despite her schedule.48 At the final stop in Beijing, State Councilor Dai Bing-gou ―nearly swooned.‖49 ―You look younger and more beautiful than you look on TV,‖ he said.50

The 2008 Republican vice-presidential candidate Sarah Palin was vilified for spending too much money on her appearance.51 When she appeared at the Republican convention to accept the nomination for vice president, the press wrote about her high-heeled red shoes (later auctioned on eBay for $2025).52 News blogs reported on Palin‘s shopping at Saks and Neimann-Marcus, where ―the governor had a $75,000 spree.‖53 But it was the Republican National Committee that authorized and paid for her $150,000 makeover, the equivalent of a clothing allowance of $2500 a day.54 Palin complained that all the attention was ―sexist.‖55 Campbell Brown, on her CNN show ―No Bias, No Bull,‖ complained that women in the public eye were subject to a double standard: ―There was plenty of talk and plenty written about Sen.

45 Kavita Daswani, The Pantsuits that Got Hillary Clinton's Vote, L.A. TIMES, Sept. 21, 2008, available at http://articles.latimes.com/2008/sep/21/image/ig- pantsuits21 (―Google ‗Hillary Clinton‘s pantsuits‘ and the thousands of pages that come up are an amalgam of gentle mockery, a modicum of flattery and all- out derision‖) A Google search on March 16, 2009, pulled up 72,200 results for ―Hillary & pantsuits.‖ Sample titles included ―Pantsuits on Parade,‖ ―Hillary Pantsuit Rainbow,‖ and ―A Look Back at Hillary‘s Year in Pantsuits 46 The Conventional Wisdom Watch, NEWSWEEK, Jan. 26, 2009, at 14. 47 Id. 48 Matthew Lee, Clinton Wows Asia with Candor, GRAND RAPIDS PRESS, Feb. 23, 2009, at A8. 49 Id. 50 Id. 51 See e.g., Candidate’s New Clothes, NEWSWEEK, Oct. 24, 2008 available at http://www.chicagotribune.com/news/opinion/nyvppal245895262oct24,0,72574 45,print.story (collecting stories). 52 Jimmy Orr, Sarah Palin's Shoes Sell for $2000 on eBay, THE CHRISTIAN SCIENCE MONITOR, Jan. 21, 2009, available at http://features.csmonitor.com /politics/2009/01/29/sarah-palins-shoes-sellfor-2000-on-ebay/. 53 Stein, supra note 3. 54 Id. 55 Elana Schor, Sarah Palin Says Clothing Budget Row is Sexist, The GUARDIAN, Oct. 24, 2008, http://www.guardian.co.uk. 150 Virginia Journal of Social Policy & the Law [Vol. 17:1

Hillary Clinton‘s looks, hair, pantsuits. Compare that with the attention given to Sen. Barack Obama‘s $1,500 suits or Sen. John McCain‘s $520 Ferragamo shoes. There is no comparison.‖56

First Lady Michelle Obama cannot step outside the White House without the media talking about her clothes. On Inauguration Day, television commentators fell all over themselves trying to be the first to deconstruct her outfits. Her green gloves and her daughters‘ outfits were from J. Crew; the retailer‘s website crashed by the afternoon of January 20.57 The girls themselves were turned into limited-edition dolls, offered for $9.99 within days.58

Ms. Obama‘s daytime ensemble was dissected by color, fabric, decoration, and designer. That evening, commentators waited breathlessly for the debut of her inaugural ball gown.59 Just after the election, a four-page Newsweek essay about Obama devoted almost one entire page to her appearance.60 The essay discussed a shift in her clothing after she appeared ―domineering‖:61 ―She toned it down and took to wearing pearls and reassuring J. Crew cardigans.‖62 Of nine photos, six featured her clothes.63

Finally, the amount of media attention paid to celebrities‘ clothing hardly bears mentioning. Tabloid magazines, tabloid web sites and blogs, along with tabloid television, cover Hollywood dress ad nauseum.64 The entertainment industry is well-known for its objectification of women, so its obsession with women‘s clothing is no

56 No Bias, No Bull with Campbell Brown (CNN television broadcast Oct. 22, 2008); Campbell Brown Calls Out Double Standard on Palin Clothes Controversy, HUFFINGTON POST, Nov. 23, 2008, available at http://www.huffingtonpost.com/2008/10/23/campbell-brown-calls- out_n_137106.html. 57 Claire Cain Miller, BITS: Seeking Obama fashions, Visitors Crash J. Crew’s Web Site, N.Y. TIMES, Jan. 22, 2009, http:/bits.blogs.nytimes.com /2009/01/21/seeking-obama-fashions-visitors-crash-j-crews-web-site/ (Jan. 22, 2009). 58 Andrew Herrmann, Obama Daughters are Just Dolls, CHI. SUN-TIMES, Jan. 22, 2009, at 10, available at http://www.suntimes.com/news/politics/obama /1391684,CST-nws-dolls22.article (Jan. 22, 2009). 59 See e.g., Gina McCauley, Michelle Obama, Fashion Mistress, THE GUARDIAN, Feb. 17, 2009, www.guardian.co.uk/commentisfree/citamerica /2009/feb/13/michelle-obama-fashion-vogue (Feb. 17, 2009). 60 Allison Samuels, What Michelle Means to Us, NEWSWEEK, Dec. 1, 2009, at 28-32. 61 Id. at 30. 62 Id. 63 Id. at 30-31. 64 See e.g., PEOPLE, US, JEZEBEL, Entertainment Tonight (CBS Television Distribution), Access Hollywood (NBC Universal Television Distribution). Fall 2009] It’s Not About the Clothes 151 surprise. And the obsession has crossed the fine line between entertainment and news; female reporters and pundits on Wall Street are now subject to the same fascination with their clothes.65

Thus, the media has been, and remains, obsessed with what women wear. But the media is simply a mirror of popular culture. In other words, the media is us, and we think a woman‘s appearance is important. But why?

The author of the Northwestern study of voter behavior theorized that ―gut instincts‖ may influence people on choice of candidate.66 Given the survey results, biology, and history, when a woman is considered, the ―gut instincts‖ include a response to her looks.

II. THE OBSESSION WITH WOMEN‘S LOOKS IS BIOLOGICAL AND HISTORICAL

Women have been judged by appearances because men needed to know which women would be successful mothers.

Cross-cultural studies suggest that attractiveness is a product of evolutionary biology; researchers believe that our ideal of beauty is the product of sex selection.67 For example, a woman‘s waist-to-hip ratio (WHR) is consistently significant across many cultures, with a .7 WHR preferred.68 A ratio in this range indicates high fertility and general good health.69 In other words, across time, geography, and culture, men looked for women who could get pregnant, deliver successfully, and stay healthy to mother their children.

Women have been judged by appearances to assess their value.

Motherhood remains a component of the ―cultural feminine ideal‖ that women are judged by.70 Beauty is the other, and the two have endured as a measurement of a woman‘s worth.71 ―Women have

65 See e.g., Suzanna Andrews, Who is Wall Street’s Queen B.?, VANITY FAIR, Nov. 2008 at 208-13, 255-58 (discussing the clothing of Maria Bartiromo and rival Erin Burnett: ―Money Honey‖ vs. ―Street Sweetie‖). 66 Study: Female candidates need good looks more than men, THE GRAND RAPIDS PRESS, October 31, 2008, at A4 (quoting Joan Chiao). 67 VALERIE STEELE, THE CORSET, A CULTURAL HISTORY 164-165 (Yale Univ. Press 2001). See generally Julie A. Seaman, The Peahen’s Tale, or Dressing Our Parts at Work, 14 DUKE J. GENDER L. & POL‘Y 423 (2007) (applying sex- selection theory to dress codes in the workplace). 68 STEELE, supra note 67, at 164. 69 Id. 70 FALK, supra note 21, at 88. 71 Id. 152 Virginia Journal of Social Policy & the Law [Vol. 17:1 traditionally been valued for their ability to find a good husband, and appearance has been assumed to be a primary measure of a woman‘s value in that regard.‖72 Naomi Wolf called this ―the beauty myth.‖73 Women must strive to attain ideal beauty, and men judge women by how successful they are. In other words, a beautiful woman is a more marriageable woman is a more valuable woman.

And a valuable woman added to the worth of a man. For centuries, royal courts used fashion to publicize ―superiority, strength, and influence across Europe.‖74 Louis XIV kept track of the clothes worn by women in his entourage; if they wore the same dress too often, it tarnished his reputation.75 Thorsten Veblen wrote in 1899 that a Victorian woman‘s dress ―is evidence of her economic dependence on a man, and is reflective of male pecuniary strength in society.‖76 Through their clothes and ―consumer‖ activities such as interior decorating, a man‘s wife and daughters were ―the expressive vehicle for announcing the status claims of the family and of its male breadwinner in particular.‖77

Women have been judged by appearances because women are their bodies.

Throughout history, women have been ―synonymous with their bodies.‖78 The female body is a ―symbolic entity‖ that people in all cultures have wanted to dress in response to sociocultural ideals of beauty, eroticism, status, etc.79 Western culture teaches men to look at women and see their bodies first.80

Feminist scholars have written about the mind-body duality; men are associated with thought (the rational), and women are associated with the body (the irrational).81 Aristotle separated the mind from the body,

72 Id. 73 NAOMI WOLF, THE BEAUTY MYTH: HOW IMAGES OF BEAUTY ARE USED AGAINST WOMEN 274 (Morrow 1991). 74 BONNIE ENGLISH, A CULTURAL HISTORY OF FASHION IN THE 20TH CENTURY: FROM THE CATWALK TO THE SIDEWALK 5 (Berg 2007). 75 Id. 76 Id. at 6 (citing THORSTEN VEBLEN, THE THEORY OF THE LEISURE CLASS (originally published 1899)). 77 FRED DAVIS, FASHION, CULTURE, AND IDENTITY 41 (Univ. of Chi. Press 1992). 78 FALK, supra note 21, at 84 (quoting feminist author Marianne Thesander) (citation omitted). 79 STEELE, supra note 65, at 165. 80 MONA HARRINGTON, WOMEN LAWYERS: REWRITING THE RULES 98 (Knopf 1993). 81 FALK, supra note 21, at 84. Fall 2009] It’s Not About the Clothes 153 and the public from the private spheres.82 Women operated in the private sphere, growing and preparing food, nurturing children, taking care of the sick and the dying, building and maintaining the household. Men operated in the public sphere: the sphere of law, politics, and reason. The Judeo-Christian tradition continued this mind-body separation; the mind and spirit must be kept pure, separate from the irrational, emotional, and messy body.

So men are their minds. But women are their unpredictable, ruled- by-hormones, sensual bodies.

Women have been judged by appearances to put them in their places and keep them there.

―Clothes are society‘s way of showing where we belong in the order of things, our role and position in the social pageantry.‖83 In 1947, Quentin Bell‘s classic study On Human Finery recognized that dress signified status, class, and group affiliation.84 Bell argued that class struggle was the most important influence on the history of dress.85 Those with status fought to keep the status quo.

In the 16th and 17th centuries, for example, governments in many European countries passed ―sumptuary laws‖ to prevent the middle and lower classes from competing with the aristocracy by wearing rich clothing.86 Christian moralists condemned extravagant clothing as sinful, worldly, and vain, and these attacks ―were often simultaneously attacks on women.‖87

And in the late 20th century, certain Islamic groups required women to wear clothes that hid their bodies, making women responsible – often at risk to their lives – for controlling the sexual urges of men.88

82 See also HARRINGTON, supra note 80, at 99. 83 William J.F. Keenan, Introduction: Sartor Resartus Restored: Dress Studies in the Carlylean Perspective, in DRESSED TO IMPRESS 1, 4 (William J.F. Keenan ed., Berg 2001). 84 Amy de la Haye & Elizabeth Wilson, Introduction, in DEFINING DRESS: DRESS AS OBJECT, MEANING AND IDENTITY 1 (Amy de la Haye & Elizabeth Wilson eds., Manchester Univ. Press 1999). 85 ENGLISH, supra note 73, at 6. 86 de la Haye & Wilson, supra note 84, at 1-2. 87 Id. at 2. 88 Id. 154 Virginia Journal of Social Policy & the Law [Vol. 17:1

Women have been judged by appearances to categorize them as lady or not.89

Depending on time and place, women who wore makeup were either whorish or wholesome.90 In 18th century England, for example, cosmetics were ―artifice that signified immorality.‖91 In Victorian times, the popular bustle gave women an unnatural shape but was accompanied by a natural face.92 In postwar Germany, women adopted the American ideal of femininity and wore scarlet lipstick to show their rejection of the healthy, scrubbed-face look promoted by fascists.93 And in prosperous 1960s America, wholesome ―June Cleaver‖ types always wore their lipstick at home.94

Clothing could mean a woman was provocative or demure, available or not. In 1750 England, looser clothing (i.e, without stays) signified loose morals.95 But during the Age of Reason, in the late 18th century, looser clothing signified ―natural‖ beauty.96 After the French Revolution, looser dress was aristocratic.97 Victorian dress was tight-waisted and repressive.98 Flapper dress was loose and rebellious.99

Categorizing women by their clothes was a means of controlling women. It might be coincidence that the word ―control‖ often described women‘s underwear.100 Or not: feminists believe that society has tried to control women by controlling their bodies with restrictive clothing, especially the corset.101 The corset was ―a coercive apparatus through which patriarchal society controlled women and exploited their

89 See STEELE, supra note 67, at 28, 47. 90 Id. at 26. 91 Id. 92 See KAISER, supra note 6, at 16, 114 (bustles drew attention to and enlarged the appearance of a woman‘s posterior). 93 Id. at 68. 94 See id. at 85-86. June Cleaver was the name of the mother, played by Barbara Billingsley, in the popular TV show Leave It to Beaver. The show aired on CBS and ABC from Oct. 4, 1957, to June 20, 1963. Leave It To Beaver, (CBS television). 95 STEELE, supra note 67, at 26, 27, 29. 96 Id. 97 Id. at 30. 98 See Kaiser, supra note 6, at 16, 113. 99 Id. at 84-85; see also STEELE, supra note 67, at 150-151. 100 STEELE, supra note 6, at 155-156. 101 See id. at 1-2, 155-156. Fall 2009] It’s Not About the Clothes 155 sexuality.‖102 Some have likened the tight-laced waist of western women to the bound feet of Chinese women.103

Although some fashion historians disagree, feminist historians believe that women symbolically fought male control by rejecting restrictive clothing.104 In 1851, dress reformers, like Mrs. Dexter Bloomer, fought to wear baggy pants.105 In the 1920s, flappers threw out their boned corsets; in the 1940s, riveters wore pants to work in the war factories; and in the 1960s, feminists didn‘t burn their bras but tossed them in a trash can.106

It is difficult in this post-feminism era, though, to be angry about bloomers, bones, and bras. But tight-lacing, in the extreme, caused serious health problems.107 Foot-binding crippled and killed.108 And clothing has been used in devastating ways to identify and control. Prisons impose uniforms on women as well as men, to repress and dehumanize inmates.109 Perhaps the ultimate prison was the concentration camp, and the most offensive effort at control through clothing the Nazi-imposed yellow star. 110 And then, of course, there is the burka.

In the workplace, employers control women employees with dress and grooming codes.

By the latter half of the nineteenth century in England, good print fabric was so inexpensive that female domestic servants looked like their mistresses.111 So the mistresses insisted on uniforms (especially for parlor maids who would be seen by visitors), and from that time on it

102 Id. at 1. Steele challenges the ―reductiveness‖ of this view. 103 Id. at 52. See generally WANG PING, ACHING FOR BEAUTY, FOOTBINDING IN CHINA (Anchor Books 2002) (discussing the history and cultural significance of footbinding). 104 STEELE, supra note 67, at 1-2, 60. 105 KAISER, supra note 6 at 80-81. 106 ENGLISH, supra note 74, at 2, 90; STEELE, supra note 67, at 152. See ―Rosie the Riveter: Real Women Workers in World War II,‖ video presentation by Sheridan Harvey; transcript available at Journeys and Crossings Pages, Library of Congress, available at http://www.loc.gov/rr/program/journey/rosie- transcript.html; Barbara Mikkelson, Red Hot Mamas, SNOPES, available at http://www.snopes.com/history/american/burnbra.asp. 107 KAISER, supra note 6, at 80, 110. 108 WANG PING, supra note 103, at 4-9. 109 See William J.F. Keenan, Dress Freedom: The Personal and the Political, in DRESSED TO IMPRESS, supra note 83, at 187-188 (Berg 2001). 110 Id. at 188. 111 DAVIS, supra note 76, at 64. 156 Virginia Journal of Social Policy & the Law [Vol. 17:1 was common for maids to wear black dresses with white caps and aprons.112

Like those English mistresses, employers in the twentieth and twenty-first centuries wanted to control the public‘s perception of their businesses by controlling the public appearance of employees. Service people still wear black. And in a way, Sarah Palin was simply an employee of the Republican National Committee, so it had the right to control the expression made by her clothing.

Courts have supported this as a legitimate business goal.113 The reported dress-code cases started entering the courts in the 1970s. Airlines dictated what flight attendants weighed and what they wore.114 Banks imposed uniforms on female employees.115 Restaurants and other commercial enterprises capitalized on women‘s sexuality to please customers.116

And it continued: Ann Hopkins won her case about sex stereotypes in 1990.117 Darleen Jespersen lost her case about a dress and grooming code in 2006.118

Judging women by their appearance encourages the use of stereotypes, and stereotypes control.

If a woman looks feminine, we put her in one box. If she looks masculine, we put her in another box. And those boxes can be difficult to climb out of. We make judgments based on women‘s clothing because ―what women wear is important in our evaluation of them.‖119 But clothing can‘t tell us much of substance. The author of the

112 Id. 113 See, e.g., Craft v. Metromedia, 766 F.2d 1205, 1215 (8th Cir. 1985) (citations omitted); see also Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 NEW ENG. L. REV. 1395, 1405 (1992) (finding that when judges uphold clothing decisions it is not judicial review but ―judicial worship of managerial power‖). Lucille M. Ponte & Jennifer L. Gillan, Gender Performance Over Job Performance: Body Art Work Rules and the Continuing Subordination of the Feminine, 14 DUKE J. GENDER L. & POL‘Y 319, 322-324 (2007) (discussing how employees are bringing discrimination suits against employers due to appearance requirements). 114 See, e.g., Laffey v. Nw. Airlines, Inc., 366 F.Supp 763, 773 (D.D.C. 1973); Jarrell v. E. Air Lines Inc., 430 F.Supp. 884 (E.D. Va. 1977). 115 See, e.g., Carroll v. Talman Federal Savings & Loan Ass‘n of Chi., 604 F.2d 1028 (7th Cir. 1979). 116 See, e.g., EEOC v. Sage Realty Corp., 507 F.Supp. 599 (S.D.N.Y. 1981). 117 Hopkins v. Price Waterhouse, 920 F.2d 967 (D.C. Cir. 1990). 118 Jespersen v. Harrah‘s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc). 119 FALK, supra note 21, at 89. Fall 2009] It’s Not About the Clothes 157 presidential-campaign study wrote, ―Unless voters are relying on stereotypes . . . the clothing of the candidate is unlikely to tell a citizen anything about the policy positions or character of the candidate.‖120

The point is, of course, that voters do rely on stereotypes because they may not have much else. Clothes do make statements, but ―they cannot be grammatically parsed like a language.‖121 ―[W]hile clothing may say something, it is scarcely involved in conversation.‖122

The hard truth remains that we judge a woman by her appearance, and her clothes are the dominant component of her appearance. We judge her, to a large extent, out of habit. Biology, history, and culture have all habituated us to judge by appearance. Unfortunately, the habit is not benign. Judging a woman by her appearance leads to simplistic identifying, categorizing, and stereotyping. It can range from the innocent identification of a nun as spiritual by her habit, to the pernicious stereotyping of a woman as silly by her frilly dress.

But habits can be broken.

III. THE LAW REFLECTS OUR OBSESSION WITH A WOMAN‘S APPEARANCE

Women who have turned to the law to remedy discrimination based on appearance have invoked the right to free speech under the First Amendment, due process and Equal Protection under the 14th amendment, Title VII, the Age Discrimination in Employment Act, the Pregnancy Disability Act, and the Americans with Disabilities Act.123

120 Id. 121 de la Haye & Wilson, supra note 84, at 5 (quoting sociologist Fred Davis). 122 DAVIS, supra note 77, at 7-8 n.5 (quoting sociologist Herbert Blumer). 123 The Civil Rights Act of 1964, 42 U.S.C. § 2000e (2009); Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (2000); Pregnancy Disability Act, 42 U.S.C. § 2000e(k); ); Americans with Disabilities Act, 42 U.S.C. §§ 12101- 12213 (2009). See, e.g., Zalewska v. County of Sullivan, N.Y., 316 F.3d 314 (2d Cir. 2003) (holding that wearing a skirt was not a right to free expression under First and 14th amendments); Tardif v. Quinn, 545 F.2d 761 (1st Cir. 1976) (holding that wearing a mini-skirt was not protected by 14th amendment); Tamimi v. Howard Johnson Co., Inc., 807 F.2d 1550 (11th Cir. 1987) (holding that pregnant employee‘s termination for bad skin was pregnancy discrimination); Shoppe v. Gucci America, 14 P.3d 1049, 1055-1056 (Haw. 2000) (holding that employer‘s dress code requiring ―younger look‖ was not age discrimination); Hogdon v. Mt. Mansfield Co., 624 A.2d 1122 (Vt. 1992) (holding that hotel maid‘s missing upper teeth was a disability under ADA). 158 Virginia Journal of Social Policy & the Law [Vol. 17:1

Legal scholars have advocated for redress under the right to privacy – and even argued for a fundamental right to freedom of dress.124

The U.S. Supreme Court has distinguished between choosing to wear clothing with a message from simply choosing what to wear in public schools.125 The Court has stated that regulating the ―length of skirts or type of clothing‖ differs from regulating speech, suggesting that simply choosing what to wear is not entitled to First Amendment Protection.126 But the Court has also suggested that there is a liberty interest in appearance under the 14th Amendment.127 And several federal circuits have either assumed or expressly found such a liberty interest, while noting that the interest is ―far from a ‗fundamental right.‘‖128

By far, the most often-invoked law in appearance cases is Title VII. The Equal Protection Clause of the 14th amendment guarantees that federal law will protect men and women equally in the public sphere.129 Title VII protects workers in the private sphere.130 It prohibits discrimination based on sex in hiring, and in employment terms, conditions, and opportunities.131 Title VII does not expressly protect women from sex stereotyping or appearance discrimination. The statute simply states that it prohibits discrimination ―because of sex.‖ 132

There is very little state law about discrimination based on appearance. Michigan is the only state to include any appearance traits in its civil rights laws, adding height and weight.133 The District of Columbia has a Human Rights Act that prohibits personal-appearance discrimination.134 The Act defines personal appearance as including ―manner or style of dress, and manner or style of personal

124 Gowi Ramachandran, Freedom of Dress: State & Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos & Piercing, 66 MD. L. REV. 11 (2006). 125 Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 506-508 (1969). But see Doe ex rel. Doe v. Yunits, 2000 WL 33162199, at *6 (Mass. Super. 2000) (granting preliminary injunction to allow a male high-school student to wear female clothes to school because his liberty interest in expressing gender identity was likely to prevail against government‘s interest in restricting that interest). 126 Tinker, 393 U.S. at 507-508. 127 Kelley v. Johnson, 425 U.S. 238, 244 (1976). 128 See, e.g., Zalewska, 316 F.3d at 321 (collecting cases). 129 See U.S. CONST. amend. XIV, § 1. 130 42 U.S.C. § 2000 et seq. (2009). 131 42 U.S.C. §§ 2000e-2(a) (2009). 132 Id. 133 Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS. ANN § 37.2103 (2009). 134 District of Columbia Human Rights Act of 1977 (DCHRA), D.C. Code § 2- 1401.01 et seq. See e.g., McManus v. MCI Commc‘n. Corp., 748 A2d. 949 (D.C. Ct. App. 2000). Fall 2009] It’s Not About the Clothes 159 grooming . . . .‖135 And Santa Cruz, California, achieved notoriety in 1985 when it passed its version of a physical-appearance ordinance.136 The Santa Cruz law prohibited discrimination in employment, lending, and real estate based on physical characteristics that ―are beyond the control of the person.‖137

Case law reflects our confusion about what a woman should be.

Most of the cases addressing appearance discrimination and women, not surprisingly, coincide with the movement of women into the workplace in the United States. These cases reflect confusion about the roles of women. In the 1970s, 1980s, and 1990s, we didn‘t know what to think about women as professionals and business people, so we looked at their clothes and expected the clothes to tell us. The clothes, however, could answer only in stereotypes. In other words: she was what she wore.

A woman should look pretty, yet professional.

In 1981, Kansas City ABC-affiliate KMBC-TV reassigned Christine Craft from anchorperson to reporter.138 Craft refused, quit, and sued.

Craft was unpopular with Kansas City viewers; focus groups and telephone surveys indicated that they did not like her looks.139 So KMBC tried to change Craft‘s looks by changing her clothes. The station gave Craft a copy of John T. Molloy‘s book Dress for Success, and then called in a consultant to advise Craft. The consultant suggested that Craft buy feminine blouses because many of her clothes were too masculine.140 She told Craft that women with ―soft‖ looks should wear blazers to establish their authority, but women with masculine hairstyles (like Craft‘s) shouldn‘t wear masculine clothing because they would look too ―aggressive.‖141

The station later recruited Macy‘s to select outfits for Craft (she went to the store, picked up the selections, then modeled them on camera for station executives‘ approval), and gave Craft a ―clothing calendar‖ that told her what to wear, when, in what combinations, and with what accessories.142

135 D.C. Code § 2-1401.02. 136 SANTA CRUZ, CAL., MUN. CODE § 9.83.010 (1992). 137 Id. 138 Craft v. Metromedia, 766 F.2d 1205, 1209 (8th Cir. 1985). 139 Id. at 1208-09. 140 Id. at 1209, 1214. 141 Id. at 1214. 142 Id. at 1209. 160 Virginia Journal of Social Policy & the Law [Vol. 17:1

Craft claimed that the station manager told her she was demoted because she was ―too old, too ugly, and not deferential to men.‖143 But the courts saw it as just about the clothes. Both the federal district court and the appeals court found that Craft failed to show that KMBC applied appearance standards more strictly to women than it did to men.144 Both courts went to some length to document that KMBC worked on the men‘s appearances, too.145 But those efforts were minimal compared to what the station did to Craft.146 And the courts concluded that Craft‘s California-beach style was not the community standard of Kansas City in 1981.147 The Eighth Circuit used language that reads like fashion blurb: the station‘s emphasis on the feminine stereotype of ―softness‖ was ―incidental to a true focus on consistency of appearance [and] proper coordination of colors and textures . . . .‖148 What was required for women news anchors, the court said, was ―professional elegance‖; men required only a ―professional image.‖149 Finally, in the district court‘s view, KMBC simply tried to help Craft because she didn‘t have an ―aptitude‖ for clothes.150

A woman shouldn’t look too masculine.

In 1982, Price Waterhouse suffered from the same gender confusion, creating what Justice Brennan called a ―catch-22.‖151 The firm refused to elevate Ann Hopkins to partnership because she was not feminine enough. The very assertiveness and toughness that made Hopkins successful – she won a two-year effort to get a $25 million client, the Department of Defense – made some male partners uncomfortable.152 One partner described her as ―macho‖; another said she ―overcompensated for being a woman.‖153 She swore, and using profanity wasn‘t ladylike.154 Finally, a sympathetic male partner told Hopkins how to improve her chances for partnership: ―walk more femininely, talk more femininely, dress more femininely, wear make-up, have [your] hair styled, and wear jewelry.‖155

143 Id. at 1212. These words later became the title of Craft‘s book about her experiences. 144 Id. at 1217; Craft v. Metromedia, 572 F. Supp. 868, 878 (W.D. Mo. 1983). 145 Craft, 766 F.2d at 1213; Craft, 572 F. Supp. at 875. 146 Craft, 766 F.2d at 1213-1214. 147 Id. at 1215, 1220. 148 Id. at 1215. 149 Id. at 1214 (emphasis omitted). 150 Craft, 572 F. Supp. at 878. 151 Price Waterhouse v. Hopkins, 490 U.S. 228, 251(1989). Congress codified ―motivating factor‖ in the Civil Rights Act of 1991 at 42 U.S.C. § 2000e-2m (2009). 152 Price Waterhouse, 490 U.S. at 234-235. 153 Id. at 235. 154 Id. 155 Id. Fall 2009] It’s Not About the Clothes 161

The plurality held that Hopkins‘s evidence was sufficient to show that sexual stereotyping played a ―motivating part‖ in the firm‘s evaluation of her candidacy for partnership, and that was enough.156 The Court stated that ―we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . .‖157 Writing for the plurality, Justice Brennan called it an ―intolerable and impermissible catch 22‖ when employers object to women being aggressive, but their jobs require it.158

A woman wears makeup.

Price Waterhouse did not help Darlene Jespersen in 2001 when she sued her employer, Harrah‘s Casino.159 Jespersen‘s case was not about clothes but makeup; she lost her 20-plus-year job as a bartender because she refused to wear it.160 Harrah‘s ―Beverage Department Image Transformation‖ required female bartenders to style their hair and wear face powder, blush, eye makeup, and lipstick every day.161 The courts didn‘t see this as a simple discrimination case under Title VII. Both the federal district court and the Ninth Circuit Court of Appeals applied unequal-burdens analysis and concluded that Jespersen failed to show that the policy was more burdensome to women than it was to men.162 There was no evidence that putting on makeup and styling hair was more burdensome for women than keeping hair short and fingernails clean was for men.163

But the dissent written by Judge Pregerson got it right.164 He wrote that Harrah‘s policy reflected ―a gender-based stereotype [] that women‘s faces are incomplete, unattractive, or unprofessional without full makeup.‖165 He concluded that Jespersen‘s termination for failing to follow a policy that imposed a ―facial uniform‖ on only female bartenders was discrimination ―because of sex.‖166

156 Id. at 250-52. 157 Id. at 251 (citations omitted). 158 Id. 159 Jespersen v. Harrah‘s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (rehearing en banc). 160 Id. at 1108. 161 Id. at 1107. 162 Id. at 1109-10. 163 Id. at 1107, 1110-11. 164 See id. at 1113-17. 165 Id. at 1116. 166 Id. at 1114. 162 Virginia Journal of Social Policy & the Law [Vol. 17:1

A woman should be attractive, and to be attractive, she should be thin.

Beginning in the 1970s, female flight attendants sued their employers under Title VII, challenging the airlines‘ weight requirements.167 The plaintiffs lost in several early cases, and the courts‘ reasoning reflected the times. In Jarrell v. Eastern Airlines, for example, the court admitted that more females were disciplined under the policy, but that was simply because there were more female flight attendants.168 The court also believed that the women could control their weight, even as they aged.169 Finally, although the court stated that it was ―not so naïve as to fail to recognize‖ that the airline‘s personal appearance standards perpetuated sex stereotypes, the court could not link the weight program with a statistically significant effect on employment opportunities.170

Continental Airlines enforced a strict weight program against female flight ―hostesses‖ to enhance its image.171 Continental ―girls‖ had to be thin and attractive; if you were five feet, two inches tall, you had to weigh no more than 114 pounds.172 Without using the word stereotype, the Ninth Circuit stated that the airline‘s weight rules were based on one: ―Subsumed in its assertion [that Continental needed attractive female cabin attendants to compete] is the view that, to be attractive, a female may not exceed a fixed weight.‖173

The Ninth Circuit considered weight again in Frank v. United Airlines, Inc., in 1999.174 Flight attendants – who were eighty-five percent female – were the only employees required not to exceed certain weights.175 They had to weigh fourteen to twenty-five pounds less than male flight attendants of the same height and age.176 The court held that because the airline‘s weight requirements for men and women were different, and put a greater burden on women to stay thin, they were facially discriminatory.177

One early airline case was about more than weight. In Laffey v. Northwest Airlines, female flight attendants sued the airline not only

167 See, e.g., Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000); Gerdom v. Cont‘l Airlines, Inc., 692 F.2d 602 (9th Cir. 1982). 168 Jarrell v. E. Air Lines Inc., 430 F.Supp. 884, 892 (E.D. Va. 1977). 169 Id. at 892. 170 Id. at 893. 171 Gerdom, 692 F.2d at 604. 172 Id. 173 Id. at 609. 174 Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000). 175 Id. at 848. 176 Id. 177 Id. at 855. Fall 2009] It’s Not About the Clothes 163 because its weight requirements for women were discriminatory, but also because the airline prohibited them from, among other things, wearing eyeglasses.178

A woman should look sexy.

In 1976, a woman who worked as a lobby attendant in a Manhattan office building was fired when she refused to wear a sexy patriotic costume that showed her thighs and buttocks.179 For the two days she wore the costume, she was harassed.180 The costume was ―short, revealing, and sexually provocative.‖181 In other words, the costume exploited the woman‘s sex as a marketing tool. The court held that requiring the costume was a sex-based condition of employment, and this was illegal under Title VII.182 In a footnote, the court recognized that the law had changed; employers in the past may have engaged ―with impunity in the type of conduct that unquestionably allowed women to be treated as sex objects.‖183 But Title VII was intended to strike down the ―entire spectrum‖ of discrimination resulting from sex stereotypes.184

In 1981, men sued Southwest Airlines because it hired only women as flight attendants.185 The airline argued that femininity and sex appeal were required to maintain its image and competitive advantage.186 The female flight attendants wore hot pants and high boots.187 The court held that being female was not necessary to perform the job of flight attendant; the airline‘s business was passenger transportation, not sex.188

But a woman should not look too sexy.

In 1976, a high-school teacher sued her employer after it fired her for wearing mini-skirts.189 The court found that the employer‘s justification was pretext, and the termination was really all about a

178 Laffey v. Northwest Airlines, Inc., 366 F. Supp. 763, 790 (D.C. 1973), cert. denied, 434 U.S. 1086 (1978) (holding that airline violated Title VII because, among other things, it required only female cabin attendants to maintain weight, wear contacts, use special luggage, and be no more than 5‘9‖ tall). 179 EEOC v. Sage Realty Corp., 507 F. Supp. 599, 605-07 (S.D.N.Y. 1981). 180 Id. at 605. 181 Id. at 607. 182 Id. at 609-11. 183 Id. at 610 n.16. 184 Id. (citations omitted). 185 Wilson v. Southwest Airlines, 517 F. Supp. 292 (N.D. Tex. 1981). 186 Id. at 294-95. 187 Id. at 295. 188 Id. at 302. 189 Tardif v. Quinn, 545 F.2d 761 (1st Cir. 1976). 164 Virginia Journal of Social Policy & the Law [Vol. 17:1 hemline.190 But the court concluded that the employer‘s right to ―make mistakes from time to time‖ outweighed the ex-teacher‘s interest.191

In 1986, a woman was forced to resign after her female supervisor made repeated comments about the size of her breasts, the fit of her blouses, and the cost of her clothes.192 The supervisor also accused the employee of acting like a prostitute.193 Construing the D.C. Human Rights Act, the court applied Title VII jurisprudence and held that the employer improperly discriminated against, retaliated against, and constructively discharged the employee for her personal appearance.194

Two decades later, a woman was fired for refusing to wear a blazer that was meant to cover up ―boobies.‖195 The employer instituted a dress code that required khaki pants and denim shirts for men, and khaki pants, polo shirts, and blue blazers for women.196 The court held that the dress code was not facially discriminatory, citing Jespersen, but that the blazer requirement may have created an unequal burden on female employees.197 Citing Price Waterhouse, the court found that sexist remarks made by management (―the girls have to wear blazers so their boobs don‘t hang out‖) showed that gender may have played a part in the plaintiff‘s termination.198

A woman should be subservient to men.

Clothes mark status, and for most of recorded history, it‘s men who wore the pants, literally and figuratively. A secretary challenged this in 1979 in Missouri.199 She was fired when she wore a pantsuit to work.200 The employer allowed women to wear pants in its general offices but not its executive offices.201 Only the executives, who were all men, could wear pants. The plaintiff argued that forcing women to wear skirts perpetuated the stereotype that men were more capable than women of making business decisions.202

190 Id. at 762-63 & n.2. 191 Id. at 763-64. 192 Atlantic Richfield Co. v. District of Columbia Comm‘n on Human Rights, 515 A.2d 1095, 1097-98 (D.C. Ct. App. 1986). 193 Id. at 1097. 194 Id. at 1099-1101. 195 Rohaly v. Rainbow Playground Depot, Inc., No. 56478-1-I, 2006 WL 2469143, at *6 (Wash. App. Div.1 Aug. 28, 2006). 196 Id. at *1. 197 Id. at *4-6. 198 Id. at *6. 199 Lanigan v. Bartlett & Co. Grain, 466 F.Supp. 1388 (1979). 200 Id. at 1390. 201 Id. 202 Id. Fall 2009] It’s Not About the Clothes 165

The court decided that there was no violation of Title VII because there was no effect on employment opportunities.203 The plaintiff‘s argument was simply ―a matter of opinion.‖204

In Carroll v. Talman Federal Savings & Loan, the employer required its 525 female employees – tellers and office workers and management – to wear uniforms.205 But 150 men were required only to wear business clothes. The Seventh Circuit held that the uniform policy violated Title VII.206 The uniform policy was demeaning to women because it implied that they were subservient to the men; the uniforms signaled lower status.207 The employer called the color-coordinated skirt, slacks, jacket, tunic, and vest a ―career ensemble,‖ but the court didn‘t fall for the euphemism. There was no question that the five pieces were a ―uniform.‖208

A woman is too emotional, so she shouldn’t make business decisions – even about her clothes.

The employer‘s reason for the uniform policy in Carroll was to reduce ―dress competition.‖209 The employer was also concerned that women could not make good decisions about what was appropriate business attire.210 ―They tend to follow those [fashions] and they don‘t seem to equate that with a matter of business judgment.‖211

But on the employer‘s ―glamour days,‖ when the women did not have to wear the uniforms, they dressed appropriately; there was no record of any woman making a poor clothing choice on those days.212 The court stated that the employer‘s reasons for the policy clearly

203 Id. at 1392. 204 Id. 205 Carroll v. Talman Fed. Sav. & Loan Ass‘n, 604 F.2d 1028, 1029 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980); see also O‘Donnell v. Burlington Coat Factory Warehouse, 656 F.Supp. 263 (S.D. Ohio 1987) (finding requirement that women wear smocks while men may wear ties and shirts was discriminatory). 206 Carroll v. Talman, 604 F.2d at 1033. 207 Id. 208 Id. at 1029, 1033 n.16. 209 Id. at 1033. 210 Id. For a more recent demonstration of this belief, see Posting of Helen G. to The F-Word Blog, http://www.thefword.org.uk/blog/2008/11/does_my_brain_l (Nov. 4, 2008, 11:32) (reporting that 400 women employed by Ernst & Young attended a course to learn how to dress appropriately for the office). 211 Carroll v. Talman, 604 F.2d at 1033. 212 Id. 166 Virginia Journal of Social Policy & the Law [Vol. 17:1 revealed that it was based on offensive stereotypes prohibited by Title VII.213

To summarize: It’s a burden to be a woman.

Almost all of the cases involving women and appearance discrimination invoked Title VII. Individual women tried to prove that an employer‘s policy was discriminatory on its face; groups of women tried to prove that policies discriminated against them as a class.

Craft lost. Hopkins won. Jespersen lost. The losers lost because the courts did not see discrimination on its face; the losers lost because they were forced by courts to prove that they suffered unequal burdens, like the group plaintiffs. The Supreme Court did not ask Ann Hopkins if, because she was told to be more feminine, she suffered a greater burden than men at Price Waterhouse. Instead, Justice Brennan called it what it was: discrimination based on a gender stereotype.

A few brave women have litigated, but most have simply tried to fit in.

IV. WOMEN HAVE TRIED TO MANAGE THIS OBSESSION WITH APPEARANCE BY FITTING IN: ASSIMILATION

―Why can‘t a woman be more like a man?‖ Henry Higgins214

In 1899, Sarah Bernhardt was photographed wearing trousers.215 In 1926, Coco Chanel borrowed from men‘s clothing for her women‘s designs.216 In the post-war years, ―hard chic‖ reflected the growing financial independence and assertiveness of post-war women.217 And in the 1960s, Yves Saint Laurent designed a tuxedo for women, mixing feminine frills with masculine tailoring.218

Women have worn menswear to rebel, and women have worn menswear because they‘ve been told to. In the 1970s, women were going to work in business and the professions, and John T. Molloy published The Women’s Dress for Success Book.219 Molloy called for ―feminizing an otherwise cloned masculine image – signaled by suit jacket and matching, well-below-the-knee, tailored skirt,‖ plus silk blouses with

213 Id. 214 A Hymn to Him, in My Fair Lady, music by Frederick Lowe, book and lyrics by Alan Jay Lerner (musical play 1956). 215 ENGLISH, supra note 74, at 90. 216 Id. at 39. 217 Id. (attributing the term ―hard chic‖ to Palmer White). 218 Id. at 89. 219 JOHN T. MOLLOY, THE WOMAN'S DRESS FOR SUCCESS BOOK (Warner 1977). Fall 2009] It’s Not About the Clothes 167 bow ties or ruffles.220 Molloy‘s book was wildly successful, but by the mid-eighties his recommended ensemble was denigrated as a uniform.221 It no longer ―seemed capable of sustaining whatever (male) career versus female (sexual object) gender ambivalence it had managed to adjudicate.‖222

Fashionable working women returned to masculine, almost militant- looking clothes with an exaggerated shoulder (complete with ubiquitous shoulder pads) ―tapering conelike to hems slightly above the knee.‖223 Fashion historians wrote that the style, dubbed ―power dressing,‖ was ―symbolically dominant – i.e., an appropriation of masculine authority.‖224 Professional women took to this style because it ―distance[d] them from unwelcome stereotypical inferences of feminine powerlessness and subservience.‖225 One fashion historian wrote that the style ―concealed feminine vulnerability in an almost belligerent manner.‖226

After the success of Molloy‘s book, a long list of how-to books for working women appeared.227 In general, their advice was to downplay femininity. Being too feminine or too sexual could be threatening to men, and men controlled women‘s destinies. One expert advised women to ―find a style with which men will be comfortable.‖228

Women were told to lower their voices and avoid a rising intonation because men might hear them as too ―emotional.‖229 Women should avoid smiling too much because men might see them as ―frivolous‖ or ―hare-brained.‖230 But if women didn‘t smile enough, they could be seen as ―severe‖ or humorless.231 Women should avoid looking and acting like ―bully broad[s].‖232 Women should not necessarily wear ―power suits‖ – but, then again, maybe they should.233 Dean Katharine Bartlett

220 DAVIS, supra note 76, at 27-28 & n.6. 221 Id. at 28 & n.6. 222 Id. at 28. 223 Id. at 9-10. 224 ENGLISH, supra note 74, at 39-40; DAVIS at 9-10. 225 DAVIS, supra note 77, at 10. 226 ENGLISH, supra note 74, at 40 (citation omitted). 227 See e.g., LOIS P. FRANKEL, NICE GIRLS DON‘T GET THE CORNER OFFICE: 101MISTAKES THAT WOMEN MAKE THAT SABOTAGE THEIR CAREERS (Business Plus 2004); DOUGLAS M. BRANSON, NO SEAT AT THE TABLE: HOW CORPORATE GOVERNANCE AND LAW KEEP WOMEN OUT OF THE BOARDROOM (New York U. Press 2007). 228 BRANSON, supra note 227, at 161-62, 164 (quoting Sheila Wellington). 229 Id. at 56. 230 Id. 231 Id. 232 Id. at 63. 233 Id. 168 Virginia Journal of Social Policy & the Law [Vol. 17:1 called these contradictions a ―minefield of choices‖ and a ―tightrope‖ for women.234

Token women adopted certain coping strategies, such as ―a plain appearance.‖235 In a famous study, Rosabeth Kanter wrote that, of two women in a group of ten middle managers, only one was well liked. Her ―pleasant but plain appearance . . . minimized disruptive sexual attributes.‖236 Older generations of women ―hid their sexuality as much as possible by, for example, adopting mannish forms of dress, from coveralls to mannish suits, and wearing little or no makeup.‖237 ―They play[ed] down any recognition of their presence.‖238 Women, like other minorities in the American workplace, covered their true attributes to fit in and make themselves ―socially invisible.‖239

Fashion historians note that even trends toward androgynous dressing support this tilt toward masculinity. Androgynous fashion for women is usually boyish, so it lessens fear of losing power to women; ―immature‖ boys are not threatening to real men.240 And men have ―flirted only sporadically, and then rather timorously, with the possibility of . . . wearing clothing that suggested femininity.‖241 The ―peacock revolution‖ of the early 1970s resulted only in brighter neckties and a bit less formality.242 Earrings aside, there remained at the end of the twentieth century a ―continuing strong male gender barrier toward all paraphernalia evocative of femininity.‖243

Political analysts seem to agree: they think that the first woman president will be a ―Sister Mister,‖ a woman who has the body of a woman but the character of a man.244

234 Katharine Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 MICH. L. REV. 2541, 2551-52, 2582 (1994) (concluding that the evaluation of appearance claims under Title VII requires more, not less, attention to community norms). 235 BRANSON, supra note 227, at 115. 236 Id. at 114. 237 Id. at 115. 238 Id. at 115. 239 Id. 240 DAVIS, supra note 76, at 37 (summarizing generally the feminist view of androgynous dressing). 241 Id. at 34. 242 See id. 243 Id. at 36-37. 244 CLIFT & BRAZAITIS, supra note 25, at xi. Fall 2009] It’s Not About the Clothes 169

In the legal profession, the push to become gentlemen has pushed women into and out of jobs; assimilation has not been successful.

More than a decade ago, Professor Lanie Guinier wrote about her experiences as a first-year law student at Yale.245 She told how a Yale professor referred to all his students – including the women – as ―gentlemen.‖246 The law school‘s model lawyer had typically male characteristics: ―aggression, a willingness to fight, emotional detachment, and exaggerated bravado.‖247 Professor Susan Sturm called this the ―gladiator‖ model.248 Not surprisingly, women did not fit the gladiator model. Sturm observed that ―being a successful gladiator means not being a ‗successful‘ woman.‖249

Yale‘s lawyer as an ―idealized man‖ stemmed from ―the broader culture in which competence (professional and otherwise) [was] associated with masculinity.‖250 Femininity, on the other hand, might demonstrate incompetence.251 So women may signal their competence by downplaying their sexuality. Legal and social scholars have theorized that certain women were self-selecting careers in law and business.252 These so-called ―social males‖ were women ―in whom cultural maleness has been layered on to biological gender identity.‖253

If you couldn‘t be male, you could at least look male. The women lawyers of the 1970s and 1980s modeled male behavior and male appearance; they usually wore conservative, dark skirt suits.254 One female lawyer described a conversation with a male partner about clothes in the early 1980s.255 He was critical of a senior woman associate who didn‘t wear the conservative suit. She dressed in loose, natural-

245 LANI GUINIER, MICHELLE FINE, AND JANE BALIN, BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE, 85 (Beacon Press 1997). 246 Id.. 247 Id. at 135, n.113. 248 Susan P. Sturm, From Gladiators to Problem-Solvers: Connecting Conversations About Women, the Academy, and the Legal Profession, 4 DUKE J. OF GENDER L. & POL‘Y 119, 121 (1997). 249 Id. at 141. 250 GUINIER et al, supra note 246, at 146-47, n. 163. See also, Martha Chamallas, The Shadow of Professor Kingsfield: Contemporary Dilemmas Facing Women Law Professors, 11 WM. & MARY J. WOMEN & L. 195, 203-204 (2005) (finding gender bias in the workplace stems from an expectation that men are more competent than women). 251 GUINIER et al, supra note 245, at 146-47, n. 163. 252 See id. at 67,154, nn. 212-13. 253 Id. at 68, 116, n.39, 154 n.212 (citing Christine A. Littleton, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279, 1280-81 (1987)). 254 HARRINGTON, supra note 80, at 100-01. 255 Id at 100. 170 Virginia Journal of Social Policy & the Law [Vol. 17:1 textile clothing with tribal-looking jewelry.256 ―The sense I got was that you were sort of suspect by being a woman. . . . [T]o the extent that you kind of blended in, in all kinds of ways, that was not so upsetting to them or less of a red flag.‖257

In 1987, a female judge in Kentucky wanted her juvenile court employees to dress in a very conservative, ―Brooks Brothers‖ style, the epitome of traditional, white-male dress.258 The judge fired a female teacher at the juvenile detention center because she did not comply with the judge‘s dress code; she wore too much makeup and her hair down.259

By the late 1990s, at least one observer wrote that the uniform of a skirt suit for women lawyers was no longer ―strictly required‖ and that there might be ―some leeway for color and exuberance of style‖ in the legal profession.260 But this observer also cautioned that ―the insignia of sexuality still give rise to tension.‖261 There is power in pants, for example. In 1999, a King County Superior Court judge told two lawyers, a public defender and a deputy prosecutor, not to return to her court the next day unless they were wearing skirts.262 The lawyers wore pantsuits. The judge said, ―Men have to wear ties and women have to wear skirts . . . it‘s not a masculine-feminine thing; it‘s just what the normal business attire is for the court.‖263 But the judge was wrong; it was a ―masculine-feminine thing.‖

Female judges themselves are subject to intense scrutiny; the robes they wear symbolize a ―desexualizing fullness or asceticism.‖264 Their bodies are under control, so their minds – reason – can take charge.265 A federal district court judge said that female judges ―just get neutered.‖266 Women judges who retain a strong sense of their sexuality are criticized about their appearance: ―her earrings are too long, and her skirts are too tight.‖267

256 Id. 257 Id. 258 Wislocki-Goin v. Mears, 831 F.2d 1374, 1376 (7th Cir. 1987). 259 Id. 260 HARRINGTON, supra note 80, at 101. 261 Id. 262 Elaine Porterfield, Judge Wants Women Attorneys to Wear Skirts in Her Courtroom, SEATTLE POST-INTELLIGENCER, Sept. 30, 1999, at A1, available at http://seattlepi.nwsource.cm/local/dres30.shtml. 263 Id. 264 HARRINGTON, supra note 80, at 99. 265 Id. at 100. 266 Id. at 102-03. 267 Id. at 103. Fall 2009] It’s Not About the Clothes 171

Adopting masculine dress and behavior, however, has not helped women gain power in numbers close to men – even after nearly four decades.268 A 2007 National Association of Women Lawyers (NAWL) survey on retention and promotion of women in law firms found that, in the nation‘s largest firms, men hold ninety-two percent of managing- partner positions, eighty-five percent of the seats on firm-governing committees, and eighty-four percent of equity partnerships.269 After seeing these numbers, NAWL then gathered information from more than 100 legal experts about how to advance women lawyers into leadership positions. One of the recommendations was to correct for ―hidden bias and stereotypes.‖270

Reacting to a 2008 report from the White House Project‘s Corporate Council, an organization aiming to advance women‘s leadership, columnist Anna Quindlen wrote, ―[W]ith many more women entering professional fields at the bottom, there is a charmingly naïve belief that we have been rising surely and steadily at the top.‖271 But not women lawyers; women lawyers made up just eighteen percent of partners in big law firms in 2008.272

A new generation may be more interested in flaunting rather than covering.

A new generation of female lawyers may reject the choice– feminine or competent – and the uniform. By the end of the 1990s, law- school enrollment ―reflect[ed] a wider range of women with ‗traditionally female‘ values or attitudes, whether cultural or biological.‖273 These law students are now the new women lawyers of the new century.

268 See generally Meredith Render, The Man, The State and You: The Role of the State in Regulating Gender Hierarchies, 14 AM. U.J. GENDER SOC. POL‘Y & L. 73, 78-79 (arguing that an ―andocentric-assimiliation‖ model has not worked for women lawyers). 269 Stewart, Melissa, NAWL Releases Checklist Aimed at Increasing Female Leaders Within Law Firms, MICH. LAWYERS WEEKLY, Sept. 1, 2008. 270 Id. at 1, 29. 271 Anna Quindlen, The Leadership Lid, NEWSWEEK, Oct. 13, 2008, at 86, available at www.newsweek.com/id/162265. 272 Id. See also THE NATIONAL ASSOCIATION FOR LAW PLACEMENT, A CLOSER LOOK AT WOMEN AND MINORITIES IN LAW FIRMS (Feb. 2008) (analyzing 2007 demographics from law firms in 46 cities) available at www.nalp.org/2008febcloselook; Number of Women, Minority Attorneys at Big Firms Ticks Up—But Not in Partnership Ranks, FEMINIST LAW PROFESSORS, Oct. 16, 2008, http:feministlawprofs.law.sc.edu (concluding that women account for 18.74% of partners). 273 GUINIER ET AL, supra note 245, at 116 n.39. 172 Virginia Journal of Social Policy & the Law [Vol. 17:1

And they don‘t seem inclined to cover. A few years ago, I had two female students, very petite, who dressed in short swingy skirts, with short boots to match, and carried big, brightly colored bags. They wore their hair in ponytails with colored barrettes and twists. One of these two explained to me that her family thought she looked like Elle Woods, the character in the movie Legally Blonde.274 They bought her ultra-cute and feminine clothes like Elle wore, and she happily dressed the part. At first, I was critical. Then I thought, why not? By the end of the movie, Elle Woods outsmarts arrogant, older male lawyers and wins justice for her client. Why not embrace Legally Blonde and embrace femininity?

New media reveals a new attitude about work, clothes, and sexuality.

On the blog ―Women Lawyers – Back on Track,‖ a recent posting discussed dressing ―conservatively.‖ 275 The writer wrote that when she worked in a ―traditional‖ legal environment she cut her hair short.276 She wore conservative clothing, especially when appearing in court before a male judge. She did this because male lawyers had commented that long hair, short skirts, sparkly jewelry, etc. were ―distracting.‖277

The writer now chooses to wear her hair long again. And she concluded that she‘d never heard of a male lawyer who gave a second thought to his appearance when appearing before a female judge. She‘d never heard a male lawyer say, for instance, ―I tried to speak in a softer, slightly higher voice, so she wouldn‘t get unintentionally turned on by my manly deep voice.‖278

Younger lawyers dress differently, starting with what‘s underneath the suit. Perhaps because they are just one more restrictive undergarment, pantyhose have been dumped by the younger set (although they may have simply replaced them with ―Spanx‖). In fact, career consultant and lawyer Mary Crane wrote that pantyhose are what really separate established professional women from their younger counterparts.279 Women lawyers who were admitted to the bar in their Dress for Success skirt suits, though, still wear pantyhose and dress more formally.280

274 LEGALLY BLONDE (MGM 2001). 275 Posting of Nicole Black to Women Lawyers—Back on Track, http://nylawblog.typepad.com/women_lawyers/2008/07/dressing-conser.html (July 20, 2008, 17:44 EST). 276 Id. 277 Id. 278 Id. 279 Mary Crane, The Great Pantyhose Divide, MORE Sept. 2008, at 149. 280 Are Younger Women Trying to Trash Feminism?, MORE, Sept. 2008, at 148- 49. Fall 2009] It’s Not About the Clothes 173

Cleavage is another generational divide. Younger women believe that feminism gave them the opportunity to wear low-cut camisoles and tank tops under suit jackets, so they can expose some flesh without being sex objects.281 Older women, however, believe that women are ―better off behind a barrier of concealment.‖282 In an Internet lifestyle column, a career expert discussed ―what‘s too sexy for the office.‖283 She told young women to go ahead and wear low-cut tops, but to ―stock up on underpinnings –camisoles, undershirts, tanks – all of which are essential when you want to ride the line between provocative and pornographic.‖284 And on the website Jezebel, the majority of women answering the question ―cleavage at work, yay or nay?‖ responded ―yay‖ – with comments that were decidedly provocative.285

In The Wall Street Journal, several experts discussed whether cleavage was appropriate after dark at work functions.286 The columnist concluded, ―Because women and power have an awkward relationship in our culture, dress is a particular pitfall for female executives.‖287 A male director of marketing for a law firm said, ―If my attorney bills out at $1,000 an hour, I want [her] to look like a lawyer, not a celebrity.‖288 A psychologist and human resources consultant said, ―[Women are] thinking it‘s an empowering thing that they can be sexy and professional, but guys don‘t see it that way. If she‘s dressed sexy, that‘s all they see.‖289

In a very small ―sex appeal‖ study of attorneys, some female attorneys admitted to practicing ―sexualized advocacy‖ to get what they wanted at work.290 This embrace of provocative behavior and dress may

281 Id. at 148. 282 Id. 283 Nicole Williams, Ask Nicole: What’s Too Sexy for the Office?, May 30, 2008, available at http://lifestyle.msn.com/your-look/everyday-style/article.aspx ?cp-documentid=8298843. 284 Id. 285 Dodai, Cleavage at Work: Yay or Nay?, May 8, 2008, available at http://jezebel.com/388560/cleavage-at-work-yay-or-nay (most of the posted responses were positive, with many commenting that they ―let the girls out‖ at the office). 286 Christina Binkley, Risky Business: Decolletage At a Work Dinner, THE WALL STREET JOURNAL, May 8, 2008, at D10, available at http://online.wsj.com/public/article_print/SB121020269170475209.html. 287 Id. 288 Id. (quoting Jonathan Fitzgarrald, director of marketing for Greenberg Glusker, a Los Angeles law firm). 289 Id. (quoting Jonscott Turco, consultant with Partners in Human Resources International). 290 Kathleen A. Bergin, Sexualized Advocacy: The Ascendant Backlash Against Female Lawyers, 18 YALE J.L. & FEMINISM 191, 192-94 (2006). Of 58 174 Virginia Journal of Social Policy & the Law [Vol. 17:1 be a backlash to what the first- and second-generation feminists espoused; younger women are defiantly and proudly uncovering what older women worked so hard to cover.291 They‘d rather stand out than fit in.

V. WHAT‘S A WOMAN TO DO? A MULTI-LEVEL APPROACH

A change in Title VII jurisprudence may help women dispel stereotypes and judgments about their clothes and appearance.

In late 2008, a federal district court decided a case about the rights of a transgender person to wear women‘s clothing before her sex change was complete.292 The plaintiff, a biological and physiological male, was a colonel in the U.S. Special Operations Command when she retired from the military.293 A terrorism expert, she applied for a job at the Library of Congress, presenting herself as a male because she was in a transitional phase of her sex change.294 The library offered her the job because she was ―significantly better‖ than other candidates, and she accepted.295 After accepting the Library‘s offer, the plaintiff explained that she would begin wearing women‘s clothes while undergoing medical treatment over the following year.296 The Library retracted the job offer.297

The court held that Title VII applied to the plaintiff‘s claim; the Library discriminated against her because of sex.298 The Library came up with at least three other reasons for the non-hire, but the court rejected all of them as pretext.299 The court also rejected older cases that held Title VII did not protect sexual orientation. Instead, the court followed Price Waterhouse and a 2004 Sixth Circuit case, Smith v. City of Salem, Ohio.

Smith v. Salem involved a fireman with gender identity disorder who was suspended for twenty-four hours because his appearance was not ―masculine enough.‖300 The Sixth Circuit interpreted the ―because of sex‖ language of Title VII in a broad fashion, stating that ―sex‖ included responses, 51 were from women. Of those, 28 denied using sex, and 12 said they had relied on sex. 291 See, e.g., Naomi Wolf, The Porn Myth, N.Y. MAGAZINE, http://nymetro.com/nymetro/news/trends/n_9437/ 292 Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). 293 Id. at 295. 294 Id. at 295-96. 295 Id. at 296. 296 Id. at 296-97. 297 Id. at 299. 298 Id. at 300. 299 Id. at 300-02. 300 Smith v. City of Salem, Ohio, 378 F.3d 566, 568 (6th Cir. 2004). Fall 2009] It’s Not About the Clothes 175

―gender.‖ Citing Price Waterhouse, the court stated that Title VII‘s reference to ―sex‖ included both the biological and physiological differences between men and women, and gender discrimination.301 ―Gender discrimination‖ was ―discrimination based on a failure to conform to stereotypical gender norms.‖302

This adherence to statutory language in its simplicity and to a broad interpretation of ―because of sex‖ would have helped Darlene Jespersen.303 It is a gender stereotype that a woman, to look her ―personal best,‖ must wear makeup.304 So when Jespersen refused to wear makeup, she failed to conform to a ―stereotypical gender norm.‖ And when Harrah‘s fired her for her refusal to wear makeup, Harrah‘s discriminated against her because of her sex, in violation of Title VII. The makeup policy was discriminatory, period.

There was no need, under Price Waterhouse and Title VII, for Jespersen to prove that somehow she (and all Harrah‘s female bartenders) suffered an unequal burden – although, of course, she did.305 And Price Waterhouse does not require a ―catch-22,‖ as some courts and commentators have suggested.306 Justice Brennan‘s famous language presents Ann Hopkins‘s situation as an example of two sexual stereotypes in competition, not a requirement or a theory of liability.307 The plurality of four (although Justices O‘Connor and White agreed with Justice Brennan‘s holding on sex stereotyping, making a majority) simply stated that sexual stereotypes were a motivating factor in the partnership decision, and this was illegal under Title VII.

Title VII does not need revision, and we do not need more regulation.

But we do need to advocate for a broader reading of Title VII and the more inclusive interpretation of ―sex‖ applied in Smith v. Salem and

301 Id. 302 Id. at 573. 303 See e.g., David B. Cruz, Making Up Women: Casinos, Cosmetics, and Title VII, 5 NEV. L. J. 240, 248 (2004) (arguing that Title VII‘s language and legislative history indicate that it is more individual than group based and criticizing those legal scholars who have been ―less faithful to the statutory text‖). 304 Jespersen v. Harrah‘s Operating Co., Inc., 444 F.3d 1104, 1116, 1118 (Pregerson, J., Kozinski, J., Graber, J., & W.Fletcher, J., dissenting). 305 Cruz, supra note 303, at 258-59. See also Deborah Zalesne, Lessons from Equal Opportunity Harasser Doctrine: Challenging Sex-Specific Appearance and Dress Codes, 14 DUKE J. GENDER L. & POL‘Y 535, 558 n.139 (2007) (collecting law-review articles that are negative about the burdens test). 306 YOSHINO, supra note 15, at 156-58. 307Contra, id.. 176 Virginia Journal of Social Policy & the Law [Vol. 17:1

Schroer.308 Ultimately, the goal should be to minimize the importance of appearance and to maximize diversity. This raises a conundrum, of course: minimizing difference while celebrating and accepting it. But women are used to dealing with such conundrums; women have been dealing with the masculine vs. feminine conundrum for about a century.

Applying sex stereotypes to women and their appearance is an example of ―second generation discrimination.‖309 This discrimination is based on ―cognitive or unconscious bias‖ and not intentional prejudice.310 So it is much harder to identify, to prove, and to control. Legal scholars, for the most part, do not believe that more regulation will work to remedy second-generation discrimination, such as appearance discrimination, that keeps the glass ceiling in place.311 Instead, we should use the law we have – the Supreme Court‘s opinion in Price Waterhouse and the language of Title VII – to control discrimination against women based on their appearance.312 When an employer discriminates against a woman because her appearance does not fit a sex stereotype, that is discrimination based on sex. And it is illegal under Price Waterhouse and Title VII.

Some legal experts argue that any appearance regulation is an invasion of privacy; dress codes do not discriminate, they humiliate.313

308 See generally Mark R. Bandsuch, S.J., The NBA Dress Code & Other Fashion Faux Pas Under Title VII, 16 VILL. SPORTS & ENT. L.J. 1 (2009) (discussing NBA dress code and arguing for broad interpretation of Title VII and expansive reading of Price Waterhouse); Cruz, supra note 303 (advocating broad reading and application of Title VII based on text; an individual, not group, approach; and rejecting burden analysis); Jennifer C. Pizer, Facial Discrimination: Darlene Jespersen’s Fight Against the Barbie-Fication of Bartenders, 4 DUKE J. GENDER L. & POL‘Y 285 (2007) (rejecting burden analysis)(Pizer was Jespersen‘s attorney); Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CAL. L. REV. 1, 31-32 (2000) (arguing for a ―sociological‖ approach that acknowledges the ―legitimacy of social norms‖ yet ―reconstructs social practices‖). 309 Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 465 (2001). 310 Id. at 460. 311 Id. at 462, 465. See also Corbett, supra note 8; But see Karen Zakrzewski, Comment, The Prevalence of ―Look‖ism in Hiring Decisions: How Federal Law Should be Amended to Prevent Appearance Discrimination in the Workplace, 7 U. PA. J. LAB. & EMP. L. 431 (2005) (arguing for expansion of Title VII and state law to include protections for the ―appearance-challenged‖). 312 See e.g., Bartlett, supra note 234, at 2579 (concluding that Title VII is fluid and still evolving, along with community norms, adding to the flexibility and strength of the law). 313 Catherine L. Fisk, Privacy, Power, and Humiliation at Work: Reexamining Appearance Regulation as an Invasion of Privacy, 66 LA. L. REV. 1111 (2006) (arguing that courts should apply privacy analysis instead of discrimination analysis because the issue is power, not sex stereotyping). Fall 2009] It’s Not About the Clothes 177

And some argue that the freedom to dress is a legal right – in fact, a fundamental right.314 While the Supreme Court has implied a liberty interest in appearance, no court has decided that there is a right to ―free dress,‖ much less a fundamental right.315

The media must change how it covers women.

Ironically, most of the columns, essays, and commentary about women‘s clothing and appearances are written by women. Entire magazines, of course, are devoted to ―style.‖316 So the media, at least in this case, is truly ―us.‖ And we can influence and direct change.

Women should be vigilant. When the media engages in woman-as- clothes, call them on it. Send a letter or an e-mail.317 Make a phone call. Comment on a blog. If the coverage is persistent, refuse to watch or to read. This is not revolutionary, of course; it‘s simply the drip method of achieving change: slow but unrelenting and eventually successful. It has taken us over two hundred years to get here; it is going to take decades more to undo the tight-lacing of certain stereotypes.

We must change how we talk about women.

On the personal level (and the personal is political), we must modify our discourse. By ―we,‖ I mean women and men. Refuse to engage in talk about her clothes, or her makeup, or her hair. When someone comments on Michelle Obama‘s latest outfit, move the discussion to what she is doing rather than wearing. Talk about colleagues and students in a way that stresses substance, not style. Retrain yourself. Consider other issues: work-and-life balance, parenting time, parent-care time, and so on.

Older women must help younger women to find a happy medium of dressing for success.

There are plenty of possibilities between sexy and bully broad. And feminine is not synonymous with sexually provocative.319 Professional women – such as lawyers – should no longer emulate men. Women should no longer ―cover,‖ using clothes to hide gender.320 Women

314 Ramachandran, supra note 124. See generally KEENAN, supra note 109. 315 Ramachandran, supra note 124. 316 See e.g., VOGUE, INSTYLE. 317 See e.g., Rhode, supra note 19, at 637-42 (offering ―strategies for change‖). 319 See e.g., Klare, supra note 113, at 1428-30 (discussing changing standards of what is provocative dress). 320 Id. at 1443-44 (cautiously advocating the eroticization of the workplace). But see Seamen, supra note 67, at 465-66 (arguing that wearing ―fancy‖ or more feminine styles of dress implies that a woman is an object of selection rather 178 Virginia Journal of Social Policy & the Law [Vol. 17:1 should reclaim the feminine and embrace Legally Blonde, to a degree. Madeleine Albright, Secretary of State during the U.S. bombing of Kosovo, displayed her femininity with scarves, pins, and hats.321

Being feminine, though, does not mean displaying the wares. Those young women who are proud to ―let the girls out‖ at work might benefit from some frank discussion and guidance – from women, not men.322 This is not to imply, though, that women should hide their breasts or their butts because they might distract or entice men. Women are not responsible for the thoughts or actions of men.323 Although neurological research indicates that the part of the brain ―for sexual pursuit‖ is two times larger in men than in women, women are not responsible for how men choose to use it.324 Men may just have to work harder to overcome the distraction. It is just as stereotypical and damaging to portray men as ruled by the desire for sex as it as to portray women as the objects of that desire.

CONCLUSION

―History has repeatedly shown that radical thinking threatens established hierarchies, synthesizes into new ideas that challenge complacent traditions, and ultimately is accepted into mainstream ideology.‖325 These words were written about fashion, but they could just as easily have been written about the law. As is true so often in the law, it is those on the margins whose demands for fairness help bump the rest of us along. And so it is those on the sexual margins – transgender plaintiffs – who may take women along with them into a more accepting, more forgiving, and more human society. It is the recent transgender cases that are expanding the meaning of Title VII.326

Transgender people blur the meaning of masculine and feminine. For too long, masculine has dominated the public sphere: the world of business, law, and politics. As the price of entry, women have downplayed their womanliness and appeared more masculine to get ahead. We have modulated our voices. We have reduced our smiling. We have covered up, usually in navy and black, plain or pinstriped. And in over thirty years, we are not close to where many thought we would be. A vice president of the National Organization for Women used a clothing metaphor when she said, ―We‘re well groomed for the than an agent of authority: ―[t]he fancier the dress, the more power exercised by the undecorated sex.‖). 321 CLIFT & BRAZAITIS, supra note 25, at xv. 322 Dodai, supra note 285. 323 See, e.g., Klare, supra note 113. 324 Binkley, supra note 286. 325 ENGLISH, supra note 74, at 2. 326 Pizer, supra note 308, at 297. Fall 2009] It’s Not About the Clothes 179 executive suites, but we‘re all dressed up with no place to go.‖327

Assimilation hasn‘t worked. ―[A]ny strategy that does not resist the male norm will not be satisfying in the long run.‖328 And there is a generation gap, perhaps a backlash: Younger women reject the covered- up approach of older women, the feminists with a capital ―F.‖ That‘s good – because embracing their female sexuality leads to owning and controlling it.

And control has been at the root of judging women by looks. History reveals that we‘ve used appearance – particularly clothing – to identify, categorize, and stereotype women. These are efforts to control perception, to simplify and standardize the meaning of something that is hard to understand.

The wiring and globalization of life have sped up and amplified the attention paid to appearances.329 And medicine makes almost anything possible; what was immutable is now mutable.330 We‘re obsessed with a woman‘s appearance, and her clothes are the biggest part of it.

There is a silver lining. Sociologists note that non-Western cultures, those societies that have been ―more stable and static,‖ past and present, where ―identities of person and place are on the whole more sharply etched,‖ seem to be ―immune to the sway of fashion.‖331 Perhaps our obsession in the West occurs because identities are not sharply etched and are, in fact, in a state of constant flux.

Might all the attention paid to women‘s clothes reflect ambivalence or confusion about women‘s identity and status? Even stereotyping might be a good sign: some studies suggest that people resort to stereotypes more often when a subordinate group threatens the dominant group.332 Because there are more women than ever before in workplaces that are not home, we‘re paying more attention to how they look. We‘re attempting to decode what any appearance tells us about status or identity. Western society in the twenty-first century is so confused about who and what a woman is, it pays an inordinate amount of attention to the cues.

327 BRANSON, supra note 227, at 12. 328 Chamallas, supra note 250, at 208. 329 See, e.g., Corbett, supra note 8, at 157-58. 330 Id. 331 DAVIS, supra note 77, at 28. 332 Bergin, supra note 290, at 216 (citations omitted). 180 Virginia Journal of Social Policy & the Law [Vol. 17:1

―Ultimately, the fact that we all wear clothes ensures the widespread appeal of the subject and makes everyone confident to express an opinion.‖333 And so we do. But thanks to Sarah Palin, for reminding us again: It‘s really not about the clothes.

333 de la Haye & Wilson, supra note 84, at 2.