One of my first jobs was waiting on tables.  I envied the female waitresses because they often scored better tips simply because they were attractive.  The women knew that.  They generally accepted that fact and used it.  But, what if the employer told the waitresses, as some do to put on more makeup and look more feminine?  Would that be discrimination?  The argument would be that if stereotyping by gender itself is a form of discrimination.  In one recent case, a female clerk at a hotel was fired because she could not or would not dress up and put on that "Midwestern Girl look."   The clerk needed to look pretty, said her manager.   Was that discrimination based on gender?

The 8th Circuit Court of Appeals thought so and ruled in her favor.  Several circuits have adopted the reasoning that gender stereotyping is discrimination.  The 2-1 decision resulted in one dissent.  The dissenting judge said that hiring or firing based on physical attractiveness  is not discrimination unless it is pretext for putting women at a disadvantage.  One commentator agrees with the majority in this decision.