William & Mary Journal of Race, Gender, and Social Justice
Abstract
This Essay reports on a commonplace form of sex discrimination that we unsuccessfully challenged in a lawsuit before the Connecticut Human Rights Commission. In a small-scale pilot study that we conducted 5 years ago (which was the basis of our initial complaint) and in a follow-up study conducted in 2013, we found that McDonald’s franchises, instead of asking drive-through customers ordering a Happy Meal about their toy preference, asked the customer for the sex of the customer’s child (“Is it for a boy or a girl?”) and then gave different types of toys for each sex. Moreover, our 2013 visits found that franchises treat unaccompanied children differently because of their sex. In 92.9% of the visits, the stores, without asking the child about her or his toy preference, just gave the toy that they had designated for that sex. Moreover, 42.8% of stores refused to offer opposite-sex toys even after the child reapproached the counter and affirmatively asked for an alternative. In the most egregious instance, a girl, after twice asking for a “boy’s toy,” was denied, even though the store a moment later had the “boy’s toy” in stock. These “fair counter” tests indicate that stores use discriminatory default, altering, and mandatory rules. They constitute strong prima facie evidence of disparate treatment on the basis of sex in the terms and conditions of contracting for a public accommodation. We also use our Happy Meal empiricism as a motivating example to explore the proper limits of civil rights law. While newspapers describing job listing as “male” or “female” have been found to be a per se civil rights violation, describing Happy Meal offerings as “boy’s toys” or “girl’s toys” may not, as a positive matter, offend courts’ current notion of equality.