Don’t Tell Me How To Dress, Or Can You?

This is the million-dollar question…literally (well almost). Violating the state and federal anti-discrimination laws can cost employers thousands of dollars per violation.

“Can’t an employer impose a dress code?”, you ask.  Do you have to allow employees to show-up in any “get up” they’ve imagined for the day, costing you customers, reputation and possibly your business.

Before we answer that question, let’s look at the issue from another perspective.

The law is continually expanding to cover more individuals and the definition of sex has grown to cover gender expression, gender identity, transgender, sexual orientation and other LGBT groups.

Because our definition of sex is no longer limited to “boy” or “girl”, our dress codes will also need to expand.

Imagine the 60’s when women first entered the workplace and wore skirts, dresses, slips, nylons, heels, make-up and most had feminine hairstyles.

Flash to the 80’s when women refused to dress the part and garnered power suits, slacks and comfortable footwear.

Myself, I haven’t worn a pair of nylons to work in decades; however, once upon a time it was unacceptable to wear heels with bare legs to work. This was before Carrie Bradshaw freed us from such agonizing social mores.

Enter the new millennium. Gender norms are blurred, and stereotypes are quickly dissolving. Men wear make-up and women shop in the men’s section.

According to the EEOC, an employer may not base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

A recent ACLU Charge of Discrimination filed with the Equal Employment Opportunity Commission (EEOC), alleges, a district manager in Phoenix discriminated against an employee on the basis of sex.

Meagan Hunter, worked at a Chili’s Restaurant as a server for almost two years. She claims she was denied promotional opportunities because she refused to dress in a stereotypical female manner. While attending a management training meeting she wore a buttoned down dress shirt, slacks, and “boat shoes.” In addition, she wore her hair cropped short and is a known lesbian.

Hunter states her manager made comments after the meeting making very clear her dress was not acceptable. Thereafter, promotional opportunities seemed to be denied based on her inappropriate gender choice of clothing.

After she quit, due to the alleged discrimination, which Chili’s denies, stating: “Feedback was given to her about our manager dress code guidelines, which apply to all managers regardless of gender identification or sexuality, but absolutely no mention was made of any need to conform to gender-specific clothing.”

 What Does the Law Say About a Dress Codes?

According to the EEOC, dress codes are generally fine—unless they are used to force employees to conform to sex stereotypes.

Discrimination on the basis of gender stereotypes, for example, a women should look, dress, and act, feminine is illegal. The U.S. Supreme Court) ruled in Price Waterhouse v. Hopkins :

Discrimination against an employee on the basis of sex stereotyping–that is, a person’s nonconformity to social or other expectations of that person’s gender–constitutes impermissible sex discrimination, in violation of Title VII of the Civil Rights Act of 1964. The employer bears the burden of proving that the adverse employment action would have been the same if sex discrimination had not occurred.

 Employer Take Away

Employers certainly have the right to impose dress codes, can require employees to wear uniforms, and dress in a professional manner, but they cannot specify that an employee must dress “like a woman” or a “man” to achieve this standard.

Applying social standards should always be avoided.

For example, allowing employees to wear khaki pants, shorts or skirts and polo shirts, regardless of gender or other protected classes is acceptable.

However, requiring women to “wear make-up and non-see through blouses”, would be an example of a stereotypical policy.

Outside of your company policy, employees should never be judged by how they dress, if they are professional and presentable, but if they can do the job.