Trait discrimination as sex discrimination: An argument against neutrality

Title VII prohibits discrimination whereby women or men are denied employment opportunities because of their status as such. Much of the employment discrimination taking place today, however, targets not all women or men, but only those with particular traits or characteristics - for example, women who are aggressive or men who are effeminate. This Article addresses the question of when, if ever, "trait discrimination" is actionable sex discrimination under Title VII. The dominant response advocated by scholars has been to require employers to act in a rigid and formalistically sex-neutral manner toward their employees. If an employer allows female employees to wear dresses, the employer must allow male employees to wear dresses as well. To do otherwise is actionable sex discrimination. This Article suggests a new response to trait discrimination that returns to Title VII's original focus on ending status-based hierarchy. The power-access approach advocated in this Article treats trait discrimination as actionable sex discrimination only when it stems from gender norms and scripts that are incompatible with sex equality in the workplace. This Article contends, in contrast to most current scholarship, that rigid sex neutrality is neither required by Title VII nor socially desirable.