II. Background: Appearance Standards and Equal Burdens Test
A. Willingham v. Macon Telegraph Publishing Co.
In one of the earliest grooming standards cases, Alan Willingham was denied employment by the Macon Telegraph (Macon Telegraph) for refusal to cut his shoulder length hair in compliance with the newspaper’s policy, which required all employees “to be neatly dressed and groomed in accordance with the standards customarily accepted in the business community.” In his claim against Macon Telegraph, Willingham asserted “sex plus” disparate treatment under Title VII because men with long hair were barred from employment, while women with long hair were eligible for the very same job.
The U.S. District Court for the Middle District of Georgia granted Macon Telegraph’s motion for summary judgment, determining that the defendant employer’s grooming code was not a Title VII violation. Upon appeal, the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision, finding instead that Willingham had presented a prima facie case of disparate treatment, and remanded the case back to the district court for an evidentiary hearing. However, the Fifth Circuit, sitting en banc, vacated the appellate court’s decision, affirming the district court’s ruling that Macon Telegraph’s grooming policy did not amount to “sex plus” discrimination. The court found that Congress’s “slim guidance” on how to apply Title VII left it open for the judiciary to draw limiting principles in claims of disparate treatment regarding an employer’s appearance and grooming standards. Further, the court maintained that Macon Telegraph did not deny Willingham a job because he was a man; rather, they denied him a job because he did not follow the company’s grooming policy. Additionally, Macon Telegraph’s standard did not amount to “sex plus” discrimination, because the policy was based on mutable characteristics “related more closely to the employer’s choice of how to run his business than to equality of employment opportunity.” The court did note, however, that employers may not impose different policies on men and women if they were unevenly applied.
B. Carroll v. Talman Federal Savings & Loan Ass’n of Chicago
Just a few years after the Fifth Circuit decided Willingham, the Seventh Circuit determined that an employer’s sex-based dress code was impermissible under Title VII. At Talman Federal Savings and Loan (Talman), Mary Carroll and all female tellers were required to wear company-sanctioned uniforms while male employees in the same positions were allowed to dress in “suitable business attire.” Female staff had to pay the cost of the uniforms, as well as cleaning and replacement. Failure to adhere to Talman’s uniform policy resulted in suspension. On behalf of herself and similarly situated female employees, Mary Carroll filed an EEOC charge against Talman for sex discrimination.
The Seventh Circuit determined that Talman’s sex-differentiated uniform policy violated Title VII because it discriminatorily affected the women’s compensation as well as their “terms, conditions, or privileges of employment.” Unpersuaded by Talman’s reasoning that its uniform policy for women was “job-related or reasonably necessary to the proper operation of its business,” the Seventh Circuit emphasized less-restrictive alternatives that would achieve the bank’s goal of professional work attire. The court held that sex-differentiated appearance standards are lawful if “reasonable” and the disparity between men and women’s uniforms only “differ[ed] somewhat.” However, requiring women only to wear uniforms communicated both that women had “a lesser professional status than their male colleagues attired in normal business clothes” and the stereotyped notion that women’s judgment could not be trusted.
C. Jespersen v. Harrah’s Operating Co.
Darlene Jespersen had a successful career as a bartender for Harrah’s casino for over twenty years and, by all accounts, was an “outstanding employee” who garnered consistently positive feedback from her managers and customers throughout her tenure. When Harrah’s introduced a new “Personal Best” appearance standard, Jespersen took issue with the requirement that female service staff, including bartenders, wear makeup. Harrah’s Personal Best policy not only mandated women wear makeup but provided specifics on what makeup must be worn, how to apply it, and what shades were appropriate. Harrah’s hired image consultants to conduct makeovers on its female staff and take photos to keep on file as a measure of each employee’s “Personal Best.” To Jespersen, wearing makeup “forced her to be feminine” and interfered with her ability to effectively bartend because she often dealt with unruly customers and being made up heavily “took away [her] credibility to do so.” Just thirty days after Harrah’s instituted its Personal Best policy, Darlene Jespersen was terminated for refusal to wear makeup while bartending.
Jespersen brought a Title VII claim against Harrah’s in the U.S. District Court in the District of Nevada, where Harrah’s succeeded in its motion for summary judgment. Relying on Ninth Circuit precedent that different grooming requirements for men and women violated Title VII only when those standards created a greater burden on one sex, the district court found that Harrah’s Personal Best program was not a violation of Title VII because it did not overly burden women over men. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, concluding that Jespersen did not meet the burden of proof required to show that Harrah’s unduly burdened female more than male employees with its policy. The Ninth Circuit also affirmed the lower court’s holding that gender-based appearance standards are not discriminatory per se; rather, different standards are lawful if the employer can demonstrate an equal burden between men and women.
In dissent, Judge Harry Pregerson argued that Jespersen did, in fact, present a prima facie case of discrimination because Harrah’s policy was at least partially motivated by sex stereotyping, as Harrah’s required women to don a “facial uniform” beyond the mere application of makeup. Judge Pregerson further contended that the Ninth Circuit’s unequal burdens analysis was incorrect; instead of comparing whether both men and women had to adhere to some appearance and uniform standards overall, the makeup requirement should be examined by itself to determine whether it imposed a burden to women.
Judge Alex Kozinski also dissented, noting that Jespersen met her burden to defeat summary judgment. Though Jespersen did not provide evidence that wearing makeup posed an unequal burden on women in terms of cost or time, Judge Kozinski argued that a reasonable fact finder could conclude that female employees like Jespersen had to put more money and work into compliance with Harrah’s appearance standards. Kozinski declared that under Harrah’s Personal Best policy, Jespersen faced an unequal burden—wear makeup or lose her job—as compared to her male colleagues.
D. Schiavo v. Marina District Development Co., LLC.
When the Borgata Casino Hotel & Spa (Borgata) opened its doors in 2003, it “quickly became the largest grossing property in the city,” partially because of its “‘BorgataBabes,’ a specialized group of costumed beverage servers.” During the interview process, BorgataBabes were informed of the company’s personal appearance standard (PAS) for both men and women, which included: (1) “be physically fit,” including proportionate height/weight requirements and (2) “‘Display a clean, healthy smile.’ Female BorgataBabes were to have a natural hourglass shape,’” and male Babes were to “have a natural ‘V’ shape with broad shoulders and a slim waist.” Women were to wear their hair “clean and naturally styled” with “tasteful, professional makeup that complimented their facial features,” and men were required to be either “clean shaven or have neatly trimmed and sculpted facial hair.”
A year-and-a-half later, Borgata’s management team modified its PAS, with more specific standards for height/weight requirements—including that Babes could not increase their baseline weight more than 7%, which approximated a change of one clothing size—and penalties for falling outside the PAS. All BorgataBabes were subject to an initial weigh-in to determine each individual’s baseline and required to sign a “clarifying” PAS, detailing the new weight standard and repercussions for non-compliance, leading up to and including termination. The new PAS also included a weight exemption for BorgataBabes with either a “bona fide medical condition” or those who were pregnant. BorgataBabes were often subject to weigh-ins arbitrarily, when a larger costume size was requested, or when a member of the management team noticed that perhaps a larger costume size would be necessary.
Less than a decade after opening, current and former BorgataBabes brought a class action lawsuit against Borgata citing issues with the 7% PAS weight gain standard. A New Jersey Superior Court granted Borgata’s motion for summary judgment against each plaintiff, dismissing all claims. Upon appeal, the Superior Court Appellate Division affirmed in part and reversed in part, finding that neither New Jersey’s Law Against Discrimination nor Title VII protected plaintiffs from employer’s PAS weight requirements because neither recognizes weight as a protected class or “proscribe[s] discrimination based upon an employee’s excessive weight.” As long as employers create and enforce sex-differentiated grooming policies evenhandedly, Title VII allows them to do so. Because the policy excepted pregnant employees and those with bona fide medical conditions, the PAS was equally burdensome to women and men.
The Superior Court Appellate Division also ruled, however, that the plaintiffs presented a prima facie case of hostile work environment when Borgata management treated female BorgataBabes differently than their male counterparts. Several plaintiffs testified that supervisors insisted on weighing female BorgataBabes multiple times, ignoring or rejecting medical documentation claiming an exemption. Other female BorgataBabes testified to being placed on “medically impossible” diets after having a baby. Thus, the plaintiffs presented a prima facie case of sex discrimination that overcame Borgata’s motion for summary judgement.
II. How Bostock Upended Title VII Sex Discrimination
In Bostock v. Clayton County, three consolidated cases were presented to the Supreme Court, posing the question: May an employer terminate an employee based on their status as gay or transgender? In case one of three, Gerald Bostock, a county social worker, had been fired after his employer found out that he participated in a gay intramural sports league. The United States Court of Appeals for the Eleventh Circuit had held that “discharge for homosexuality is not prohibited by Title VII,” and the county was within their rights to fire an employee simply for being gay. In a second case, Donald Zarda had been terminated from his job as a skydiving instructor just days after mentioning to his employer that he was gay. The United States Court of Appeals for the Second Circuit had ruled that Title VII protected employees from employer discrimination and that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” Lastly, Aimee Stephens had sued Harris Funeral Homes for terminating her after she had disclosed she was transitioning from male to female and intended to follow the dress code for women employees. The United States Court of Appeals for the Sixth Circuit had held that employers may not discriminate against employees based on their transgender status. Though each case was prompted by similar circumstances—long-standing employees let go from their positions shortly after the employer discovered they were either gay or transgender—the federal courts were not in agreement of the outcome; thus, the Supreme Court granted certiorari to make a determination.
In an opinion written by Justice Gorsuch, the 6–3 majority held that, under Title VII, “it is impossible to discriminate against a person for being homosexual and transgender without discriminating against a person based on sex.” Citing precedent expanding Title VII’s reach, the majority held that “homosexuality and transgender status are inextricably bound up with sex,” and, therefore, an employer’s intentional discrimination grounded in either characteristic has the effect of treating an individual differently because of sex. As a result, “an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules” such that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.” The majority reasoned that Title VII’s language “because of . . . sex” triggers a but-for causation test, a “sweeping standard . . . established whenever a particular outcome would not have happened ‘but for’ the purported cause.” The majority also noted that Title VII explicitly focuses on protecting individuals from discrimination and, therefore, an employer’s argument that treatment of men or women is generally equal, is not a valid argument in a case of sex discrimination.
Addressing dissenting arguments that Congress could not have anticipated the broad application of Title VII when it was enacted, the majority clarified, just “because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text.” In other words, when interpreting Title VII or any ambiguous statutory language, courts may not consider whether Congress, when enacting a piece of legislation, anticipated the outcome of a particular case or how its language might apply to a particular set of facts. Because Title VII is such an integral piece of civil rights legislation, the majority argued,“It is written in starkly broad terms. It has repeatedly produced unexpected applications”; therefore, the limiting principles suggested by the defendants and dissenting justices are improper. Finally, the majority assured its dissenters that Bostock’s holding did not attempt to resolve challenges of sex-segregated locker rooms or bathrooms, or that “dress codes will prove unsustainable after our decision today.” The Court instead left such questions unanswered for future consideration, focusing instead on an outcome where federal law protected transgender and gay persons from discrimination in the workplace.
Justice Alito, joined by Justice Thomas, wrote the first of two dissenting opinions, accusing the majority of creating new legislation instead of interpreting existing law. Pointing to failed congressional efforts to add “sexual orientation” and “gender identity” as protected classes under Title VII, Justice Alito argued that the statute is limited to race, color, religion, sex, and national origin. According to Justice Alito, the majority merely borrowed a portion of the Equality Act of 2019 and applied it to their opinion in Bostock in an attempt to modernize the application of Title VII. Under Justice Alito’s originalist interpretation, it would be next to impossible to find anyone in 1964 willing to agree that discrimination “because of . . . sex” included sexual orientation or gender identity. Even more, Justice Alito argued that Congress did not intend to protect gay or transgender employees when enacting Title VII because “sex”—back in 1964 and today—only refers to “the genetic and anatomical characteristics that men and women have at the time of birth.”
Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity are on the list. As long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment decisions.”
Justice Alito made a clear distinction from Bostock and precedent on which the Court relied in its decision, indicating that precedent cited by the majority, Oncale v. Sundowner Offshore Services, Inc., Phillips v. Martin Marietta Corp., and City of Los Angeles Department of Water and Power v. Manhart, were “thoroughly unremarkable,” as they dealt with discrimination based on biological sex. Towards the end of his dissent, Justice Alito highlighted some of the “far-reaching” consequences of the decision, with “effects that extend well beyond the domain of federal antidiscrimination statues,” as a result of the Court’s decision, like sex-assigned locker rooms, bathrooms, “or anything else of the kind.”
The second Bostock dissent, by Justice Kavanaugh, accused the Court of “rewrit[ing] the law simply because of their own policy views,” offending the separation of powers between Congress and the courts. By defining the term “because of . . . sex” literally, instead of using its ordinary meaning, Justice Kavanagh argued that the Court’s interpretation of Title VII “destabilizes the rule of law and thwarts democratic accountability.” Like Justices Alito and Thomas, Justice Kavanaugh believed sex discrimination and discrimination based on sexual orientation to be “two distinct harms caused by two distinct biases that have two different outcomes,” today and back in 1964 when Title VII was enacted. Historically, argued Justice Kavanaugh, both Congress and the Court have set the terms apart from one another; therefore, it was impermissible for the majority to find any other meaning within the statute beyond sex discrimination. Further, if it were proper to assume that sexual orientation and sex discrimination were linked, high-profile cases that deemed discrimination based on sexual orientation unlawful would not have been so difficult for the Court to decide. In his concluding paragraphs, Justice Kavanaugh warned that the decision would have long-standing, negative effects on the separation of judicial and lawmaking powers:
Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate . . . . Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. . . . And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.
III. Post-Bostock Implications
A. Criticism: Reconciling Bostock and Appearance Standard Precedent
Justice Kavanaugh argued that the Court’s literalist interpretation of Title VII in Bostock did not align with past precedent, which one scholar has characterized as previously “allow[ing] companies to have reasonable variances in standards to account for societally common differences between sexes.” And despite the majority’s denial that it was deciding the issue, the expansive but-for analysis it used would bar employers from requiring different appearance standards for different sexes. Thus, because of Bostock, employers likely no longer have flexibility with sex-based appearance standards, even in situations where such a policy may seem “facially reasonable.” Bostock’s holding contradicts the undue burdens test upon which courts previously relied for grooming policy cases; instead of examining whether a policy affected a class of persons as a whole, courts must now look to the effect on the individual who takes issue with a sex-specific appearance standard. In response, employers and their human resource teams should adopt gender-neutral appearance policies while staying informed on EEOC guidance for additional clarity. Still, some fear that gender-neutral standards pose long-term negative risks to company culture, and others question the practicality of implementing sex-neutral appearance policies in the workplace.
Even if an employer does not care about societal conventions surrounding “appropriate” grooming standards, some assert that employers must consider client opinions about an employee’s appearance. The argument continues that because Title VII protections were expanded in Bostock, the Bona Fide Occupational Qualification (BFOQ) affirmative defense should also be expanded, as Title VII does not “expressly preclude companies from consideration of issues like business profits or efficiency of operations.” Though it is well established that customer preference is not an appropriate application of the BFOQ defense, some believe that courts should adopt a more flexible test to determine whether an appearance policy is “reasonably necessary to the normal operation of the business.” In particular, Justin Blount, Associate Professor of Business Law at Stephen F. Austin State University, puts forth a three-pronged approach to the BFOQ defense:
(1) What is the nature of the business at issue? (2) Does the appearance standard bear a reasonable relationship to the carrying on of the business, and if so, how strong is the relationship? and (3) If the necessity of the appearance standard is based upon customer preference, are the preferences rooted in harmful stereotypes or normal, reasonable societal expectations?
Blount admits that his proposed approach may not be perfect and applicable in every scenario, but it does allow employers more freedom to set reasonable expectations without violating Title VII. And, to accommodate transgender employees when sex-specific rules are a BFOQ, Blount puts forth a “simple answer” for employers: allow the individual to choose the appearance standard with which they identify (male or female), rather than forcing the employee to groom themselves in accordance to the gender they were born. However, Blount concedes that his proposed solution does not apply to certain groups of employees, including individuals who do not identify as male or female at any given time, and may have difficulties adhering to an employer’s gender-based appearance standards.
B. Criticism: Bostock Did Not Resolve Much
Although the Bostock decision was considered a “significant step towards meaningful equality for people of all genders and sexual identities,” many criticized the Court for its failure to clarify how far and to whom Title VII extends. On the one hand, the majority declared that employers may not discriminate based on sexual orientation or gender, while, on the other hand, the dissent argued that sexual orientation and gender identity are not the same as “sex.” For many, including nonbinary people, Bostock “left too much to interpretation in the lower courts, and the decisions will not be applied consistently” in sex discrimination cases.
Those believing that Bostock did little to settle what “sex” really means under the Act point to Justice Gorsuch’s commentary directed at dissenters’ fears of “undesirable policy consequences” stemming from this decision: Bostock was limited to gay and transgender persons in an employment discrimination context. In addition, the Court expressly noted that dress codes, among other employer policies, were not impacted by Bostock. Also, there have been long-standing issues with Supreme Court’s use of sex and gender interchangeably. And, given the lack of legislative history of sex as a protected class under the Act, a nonbinary plaintiff’s argument that Title VII applies to them may raise judicial suspicion. Under a narrow lens, a nonbinary plaintiff is unlikely to succeed in a Title VII claim because their lack of gender identity “is utterly detached from sex, not inextricably connected to it.” A defendant could simply argue that any adverse action taken against a nonbinary employee was due solely to the employee’s failure to conform to one gender. Therefore, in the context of appearance standards, an employer could argue that it is within its rights to terminate a nonbinary employee for their failure to comply with its gender-based dress code because “sex” is not defined as a lack of binary gender identity according to the Supreme Court.
Conversely, there are contentions that Bostock’s broad definition of “sex” extends to gender identity, “even if that gender identity is not associated with biological sex.” In fact, experts in the legal field believe that Bostock, “leaves no coherent way to exclude non-binary people from protections against sex discrimination.” Although the only hint that “gender fluid” persons would be included in the Bostock decision was in Justice Alito’s dissent, this inclusion was considered a step forward because nonbinary people are often left out of judicial decisions altogether. And, given the Court’s inability to keep up with the changing terminology within the LBGTQ+ community, it is likely that the Court intentionally limited its language as “the simplest way to articulate the decision.” More importantly, in reviewing the legislative history of Title VII and past precedent, many argue that the Court intended for “sex” and “gender” to extend beyond “mere biological categorization” to nonbinary people. Accordingly, “[b]y including discrimination based on traits that are ‘inextricably bound up with sex,’ the Court expanded the legal definition of sex discrimination and with it the types of discrimination the law can remedy.” Applying a more liberal interpretation of “sex” under Bostock, a nonbinary plaintiff could triumph in a sex discrimination case against any employer policy that requires its employees to comply with gender-based appearance standards. “If the plaintiff can point out where sex played a role in the employer’s decision, Bostock, with its strong statement against the consideration of sex in employment decisions, may serve as helpful precedent.”
Even though the Court noted that its decision in Bostock was limited in application, the majority’s rationale has already made an impact on the courts and employer policies. For example, the decision in Hatcher v. Birmingham-Jefferson County Transit Authority, a discrimination case initially dismissed because “sexual orientation claims were not cognizable under Title VII . . . ,” was vacated and remanded by the Eleventh Circuit “after review and in light of Bostock.” Likewise, in Redmon v. Yorozu Automotive Tennessee, Inc., the Sixth Circuit vacated and remanded a district court decision to dismiss for failure to state a claim, citing to Bostock’s rationale. Further, Bostock has been a primary source of authority for Title IX claims of gender identity discrimination—“these courts looked to the reasoning of Bostock for guidance on determining whether such policies discriminate because of sex.”
Moreover, Bostock’s impact has been felt by employers and their trusted advisors, as evidenced in various employment law guidance. One source suggested:
Employers should respect an employee’s preferred name, pronoun, and title, regardless of the sex assigned at birth. . . . Employers who want to implement dress codes would be best served instituting those that require neat, clean, and professional appearance, or gender-neutral uniforms—rather than stating that “women” should dress in certain clothing and “men” in other clothing.
Another cautioned:
Gendered dress codes often may be premised upon outdated sex-based stereotypes, and they may make transgender and gender-non-binary employees feel excluded. . . .
Therefore, employers that currently maintain sex-specific dress codes and grooming standards without a bona fide occupational qualification . . . may want to consider implementing gender-neutral dress codes and grooming standards. Some employers have chosen to be very succinct, telling employees simply to “dress appropriately.” Other companies prefer to spell out dress codes and grooming standards in more detail. When doing so, the key is to focus on the clothing or accessories themselves and avoid dictating gender-specific rules.
Echoing in on BFOQ concerns, another wrote:
Customer preferences do not trump an employee’s rights. Employers are not allowed to segregate or discriminate against employees based on actual or perceived customer preferences as to sexual orientation or gender identity (or other protected classes). Dress codes are fine, but you must allow a transgender person to dress consistent with his or her identity. Employers may not discriminate against employees based on nonconformity with sex-based stereotypes.
Framing the issue as what employers may do, a fourth assured:
Companies can often achieve their objectives through simple, natural directives, like a requirement that employees always present a “professional appearance” or a requirement that employees wear “professional business attire” on days that they interact with clients. This gives employees the flexibility to choose their own clothing and present an appearance that conforms with their gender identity and expression. . . . Any dress, grooming, or appearance policy should generally be gender-neutral and applicable to all employees, except in limited circumstances where the company has some specific, work-related reason for a gender-specific requirement.
No matter the advice offered to employers, one thing is clear: sex-based grooming standards are outdated and unnecessary. Even more, forcing employees to adhere to proscribed social norms does nothing to improve employee performance; in fact, such gender-based appearance policies have shown to negatively impact transgender and nonbinary employees.
C. Recommendations and Conclusion
Grooming code jurisprudence in the past relied on the unequal burdens test, looking to whether an employer’s policy burdened men and women equally. However, as a direct result of Bostock, employers who continue to enforce antiquated gender-based appearance standards are at risk of claims for sex discrimination. Moreover, employers who wish to attract and retain talent should heed the advice of employment law and human resource professionals cited above—retire any gender-based appearance standards in favor of a policy (or set of policies) that ensures optimal employee performance. Most employers and their advisors can determine what attire/facial policies are appropriate for the workplace. This seems self-explanatory and likely would not change in an industrial environment, where the primary concern is safety and not appearance. However, in a professional setting, management may choose to introduce an overarching “dress for your day,” policy in which the firm would articulate a general policy and outline the various appearance expectations. Below is an example of how a law firm could communicate its dress code for all employees, regardless of their gender identity:
Workplace Appearance, generally: It is our firm’s philosophy that all employees, when representing the company in court or at the office should present themselves in a professional, neat, and tidy manner. Although we trust our team to understand what it means to “dress for your day,” many have found it helpful for the firm to specify what is expected in terms of appearance in the typical scenarios an employee would find themselves in while employed at our firm. Any deviation from this policy should be approved by the employee’s supervising attorney.
Personal Hygiene: All employees are expected to be clean and always appear groomed. Please avoid excessive makeup, long nails, cologne, or accessories that draw attention to your appearance rather than your work product.
Courtroom Attire: All employees appearing in court should wear a neatly pressed blue or black suit with a solid colored, collared shirt. If a dress or skirt suit is worn, it must be knee length or longer. Shoes, either black or brown, must be polished. Dress socks or hosiery are required. Ties in a neutral hue (navy, gray, brown) may be worn.
Office Attire: When working from the office, meeting with clients, or participating in video conference calls from home, we expect all employees to dress in business casual attire. A list of appropriate clothing choices is provided below that meet the “business casual” definition:
- Dress pants
- Sweater
- Blazer
- Collared shirt
- Close-toe shoes
- Blouse
- Mid-length or longer skirt
Attempts to take client/customer preferences into consideration to impose sex-based appearance standards ignore Bostock’s holding: any adverse employment action taken because of an employee’s sex—including those who identify as gay, lesbian, nonbinary, or transgender—violate Title VII.
In conclusion, Bostock provides nonbinary plaintiffs an opportunity to challenge employer’s outdated sex-based grooming standards. We no longer live in a world where employees must identify as male or female, and, as such, the workplace must reflect these changes.