Emily Gold Waldman (Pace) has posted to SSRN her article The Preferred Preferences, (forthcoming, 97 North Carolina Law Review (2018)). Here is the abstract:
In theory, customer preferences cannot justify discriminatory treatment by employers. The reality is more complicated. Built into the structure of federal employment discrimination law are several openings for customer preferences to provide employer defenses to what would otherwise likely be actionable discrimination.
This Article explores when and which customer preferences can enter those openings. In particular, I focus on what I deem the “preferred preferences”: the customer preferences that have formed the basis of successful employer defenses to discrimination claims. I identify six such preferences, ranking them according to how much deference they receive: (1) aesthetic appeal; (2) physical privacy from employees of the opposite sex; (3) psychological comfort/affinity with employees of the same sex; (4) an English-speaking environment; (5) the desire not to be proselytized to/feel judged; and (6) convenience. I also analyze a potential seventh “preferred preference”—diversity—that courts have yet to consider.
I show that each individual preferred preference is not just a one-off exception to the supposed irrelevance of customer preferences, but part of a collective body of doctrine that operates according to its own principles. Although courts are not explicit about this, these preferences intuitively strike courts as reasonable and natural, both because they do not seem invidiously discriminatory and because they align with ingrained social conventions and norms. As a result, courts either (1) consider them weightier than “mere preferences” and/or (2) view compliance with them as imposing only a minor burden on employees. The more that these two factors are satisfied, the more “preference deference” we see.
But courts are not striking the right balance in their preference deference. This largely stems from the tension between the claim that customer preferences are irrelevant in antidiscrimination law and the reality that they sometimes do count. In order to reconcile this dissonance, courts elevate the preferred preferences into virtual needs or minimize how much they burden employees. In the process, biases and inconsistencies sneak in. Courts should begin by acknowledging that all of these preferences are indeed preferences rather than virtual necessities, and show greater awareness of the ways in which policies responding to these preferences can impose differential burdens—particularly with respect to the protected characteristics of sex, race, national origin, and/or religion—on employees. Although I do not argue that all customer preferences should be held invalid, I propose two important guideposts in analyzing these issues: (1) a context-specific look at whether the preference relates to the employee’s actual performance of the specific job and (2) a broad look at the extent to which the preference limits equal employment opportunity in the workplace. Applying these principles, I argue that a re-ordering of the current preference hierarchy is in order.
The full article is available here.