ABSTRACT
Why an Exception for Sex-Segregated Grooming Standards Undercuts Title VII.
Employers in the United States have courts’ approval when they require women to wear makeup at work or to dress in a different (sometimes more revealing) uniform than men. Despite the Civil Rights Act of 1964’s nationwide ban on workplace sex discrimination in the United States, courts routinely permit an exception not written in the statute: employers can require workers’ grooming – clothing, hair, makeup, etc – to vary by sex.
This Article illuminates how this judicial gloss on the Civil Rights Act not only strays from the statutory text, but also contributes to manifold downstream problems. The lower federal courts’ invented exception flows from three ‘haircut cases’ in the 1970s but was never adopted by the US Supreme Court. The exception thus fails to reckon with the fact that now, under Bostock v Clayton County, the Act protects gender nonconforming workers, who may not neatly fall into ‘male’ or ‘female’ categories. The exception also allows some businesses (eg, Hooters and other ‘breastaurants’) to continue signaling support for discriminatory or abusive gendered practices. And the exception props up an economy that often requires women to spend more on and use more makeup, hair, and other personal care products to comply with employer and social expectations – despite that these products may also contain chemicals that have been linked to health concerns such as infertility, adverse birth outcomes, adverse effects on offspring health, and cancer.
It is time for legal support for these sex-segregated standards to end. This Article advocates for a simple intervention: courts should reverse course and hold that sex-segregated grooming standards, on their face, can violate workplace antidiscrimination laws. Though doing so will not wholly solve the problems to which these standards have contributed, recanting the courts’ judicially created exception is a necessary step not only to bring doctrine in line with statutory text, but also to dismantle structural support for interpersonal, economic, and health-related harms that continue to fall disproportionately on women.
Zhang, Margaret, The Haircut Cases Were Wrong (July 14, 2026), 47 Columbia Journal of Gender and Law (forthcoming 2026).
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