In 1989, the Supreme Court in Price Waterhouse v. Hopkins declared that
sex stereotyping was a prohibited form of sex discrimination at work. This seemingly
simple declaration has been the most important development in sex discrimination
jurisprudence since the passage of Title VII. It has been used to extend Title VII’s
coverage and to protect groups that were previously excluded. Astonishingly,
however, the contours, dimensions, and requirements of the prohibition have never
been clearly articulated by courts or scholars. In this paper I evaluate and reject the
interpretations most often offered by scholars—namely that the prohibition requires
either freedom of gender expression or sex-blind neutrality. I argue that the
prohibition reflects not a coherent antidiscrimination principle but a pragmatic
burden-shifting framework that turns on the compliance costs for the worker. I
conclude by arguing that the sex stereotyping prohibition has not lived up to its
rhetorical promise. Indeed, the implications of the prohibition are both dangerous
and ironic in ways that scholars have yet to recognize. While the prohibition has
extended Title VII’s protection to new classes of workers, it has done so by relying on
and reinforcing traditional gender categories. The result is that the prohibition
protects some individuals at the expense of the class whose subordination—
stemming from socially salient gender norms—remains intact.
Volume 161 Issue 3 2013 Article