The line of argument is not complex. Part I explicates the unequal burden doctrine and its link to the predecessor theory of “mutable characteristics.” Part II offers the aforementioned statutorily formal argument, disproving unequal burden theory through an examination of Title VII’s plain language and structure in light of modern Supreme Court precedents addressing Title VII’s ban against stereotyping. This analysis places special emphasis on 42 U.S.C. § 2000e-2(m), in which Congress clarified that plaintiffs prevail when discriminatory animus merely is a “motivating factor” rather than the “but-for cause” of the defendants’ conduct.
Although not the lengthiest discussion herein by any means, Part III presents what may be this Article’s most substantial enhancement to relevant scholarship by applying abstract moral philosophy, specifically modern dignity theory, to assure that the doctrinal arguments presented in Part II do not constitute unduly literal—absurd—applications of the Act’s text. Eschewing as patently mistaken the “consequentialist” approach adopted by most commentators criticizing unequal burden theory, this Article argues in favor of deontology, the belief that “morality is transcendent, a set of a priori principles discernable through reason. [Contrary to consequentialism, m]orality . . . does not care what the possible outcomes of a particular moral problem may be.” Pursuant to deontological theory, the concern in grooming code cases is not whether the given race- or sex-based appearance rule—say, forbidding male employees from wearing long hair—engenders good or bad outcomes. Rather, rejecting the “balancing” approach that characterizes determining the aggregate “good,” the issue is whether the employer’s rule objectively is immoral, thereby a violation of Title VII, or is objectively moral, in which case it comports with Title VII. Indeed, this Article shows that although ostensibly logical, the morality of civil rights is not discerned by balancing tests because such protocols inevitably endorse as the meaning of “morality” the personal preferences, predilections, and biases of the judge, administrator, commentator, or indeed any person performing the “balance.” Instead, morality must be understood as independent in its own right, not as the culmination of reviewers’ private, albeit deeply held and sincere, inclinations.