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. It focuses on what I deem the “preferred preferences”: the customer preferences that have formed the basis of successful employer defenses to discrimination claims. This Article identifies and evaluates six such preferences: (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-only environment; (5) avoidance of proselytization or judgment; and (6) convenience. This Article also analyzes a potential seventh preferred preference--diversity--that courts have yet to consider.
The Article shows 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 (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. 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. This Article illuminates how this occurs and then argues that a reordering of the current preference hierarchy is in order.
Emily Gold Waldman, The Preferred Preferences in Employment Discrimination Law, 97 N.C. L. Rev. 91 (2018), https://digitalcommons.pace.edu/lawfaculty/1111/.