Sex Based Dress Code Liability

Recently, a young woman’s story gained attention when her employment was terminated after she went against company policy and refused to wear high heels at her job. While the incident occurred in England, the worldwide attention it gained indicates that company dress codes and appearance policies are still a hot topic and employers need to spend time reviewing any policies they may have. Years ago, cases involving dress codes and appearance policies were prevalent, usually involving the airline and casino industries. Claims were made against airlines for imposing weight restrictions on female flight attendants but not males and casinos for policies that required women to wear makeup but not men. Additionally, many companies had policies banning men from having long hair but not women. While the above mentioned policies are not as prevalent today, there are issues that employers should be aware of when instituting a dress code or appearance policy.

Employees can raise a number of theories under Title VII of the Civil Rights Act when challenging a dress code or appearance policy. While not common, a policy could be discriminatory on its face resulting in the disparate treatment of men or women. Employees can also allege the policy is disparately enforced or that the policy violates Title VII by requiring them to conform to stereotypes based on sex.  For example, policies that require men to wear suits and ties or require women to wear dresses have come under attack. It should be known that the Equal Employment Opportunity Commission (“EEOC”) has taken the position that sex stereotyping is a viable standalone claim under Title VII. Today, we are most likely to see this type of case arise in gender identity bias claims.  Recently both men and women have brought claims against their employers who enforced dress codes that were inconsistent with their gender identity. The EEOC has stated that employers who have different dress codes for men and women must allow workers to choose the style of dress that conforms to the gender they identify with.

So how as an employer can you protect your company from violating the law while still maintaining a dress code or appearance policy? Employers can defend themselves against Title VII claims by showing they have a business need or justification for the sex-based dress code or appearance policy. This can be shown by presenting a legitimate business reason for the policy or that the policy is job-related and consistent with business necessity. If you are an employer who has a dress code, it is best to present workers with a variety of options to choose from or simply have a gender neutral dress code or appearance policy that focuses on professionalism, neatness, cleanliness or whatever qualities the employer associates with its corporate image.

Overall, when considering a dress code the employer must determine what is truly critical for the success of their business and ensure that the policy is applied equally across every protected class.

If you have a question, the St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.