Some recent articles espouse that gender based dress and appearance codes constitute unlawful discrimination and should be repealed because they perpetuate stereotyping. Others propose expanding the definition of "because of sex" to include sexual orientation and gender identity. I accept neither position. I believe that "because of sex" should be given the original meaning Congress intended in 1964, and again in 1991, when the statute was revisited.There is a body of work on the study of heuristics involving stereotypes in the social sciences. Most court cases involving stereotyping involve race or sex conscious bias. These stereotypes creep into the subconscious and affect everyday thought in and out of the workplace. Conscious bias is knowingly and intentionally discriminating against someone of a different race or gender or other defined group. In contrast, subconscious bias is so subtle that the biased individual is not even aware that he or she is biased.

This paper will show that the courts are not the best place to discern or address subconscious bias, including gender stereotyping. This paper begins with an examination of Title VII legislation from 1964 and 1991. The paper will examine the 1991 codification that if sex discrimination plays a motivating part in an employment decision, the employer is acting on the prohibited basis of sex. The paper will then discuss dress and appearance codes and related stereotyping. In Part IV, a discussion of cases of discrimination against homosexuals and transgendered persons will show how these plaintiffs attempt to bootstrap sexual orientation and gender identity into Title VII.

In Part V, the paper will discuss subconscious bias to provide an understanding of the meaning of what the literature often refers to as unconscious, subconscious, implicit or subtle bias. The paper will then apply this discussion to the employment context. Finally, I will argue that action to overcome subconscious gender stereotyping in the workplace, although not impossible, is not likely. Ultimately this paper will propose that the current proof structure is the best means of uncovering or litigating subconscious bias in the workplace.