Dress Code Liability? Sex Bias Not Always Clean-Cut

By Jay-Anne B. Casuga

Would a workplace policy requiring female employees to wear dresses and makeup, or to otherwise “ dress like a woman,” be permissible under federal anti-discrimination laws? Well, as with nearly every legal question, it depends.

Lawsuits challenging sex-based employee dress codes or appearance standards under Title VII of the 1964 Civil Rights Act aren’t seen often, attorneys and other employment law practitioners told Bloomberg BNA. But case law on the issue generally allows different requirements for men and women as long as they’re reasonable and don’t unequally burden one sex.

Veronica Arechederra Hall said her initial impression is that a dress like a woman policy wouldn’t pass muster under an unequal burdens test if there were no counterpart for men. Hall is a partner with Lewis Brisbois Bisgaard & Smith in Las Vegas and a member of the firm’s employment and labor practice.

So what if an employer also wants male employees to “dress like men,” requiring suits and ties and short hair? The answer still isn’t clear-cut.

“It depends on the employment context and the business reason,” Jennifer C. Pizer, senior counsel and law and policy director for Lambda Legal in Los Angeles, told Bloomberg BNA. Pizer and Hall argued on behalf of an employee and an employer, respectively, in an appeals court case that involved uniform, appearance and grooming standards at a Harrah’s casino.

An employer that sets different standards for men and women, even if it has policies for both, may still be “asking for some trouble,” Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center in Washington, told Bloomberg BNA. A number of legal theories exist that could potentially expose an employer to liability if it says “men dress like this or women dress like that,” Martin said.

Sex-Based Dress Code Cases Uncommon

Dress code lawsuits under Title VII crop up more often within the context of accommodating an employee’s religious beliefs or a practice related to a person’s race or national origin. The Americans with Disabilities Act also requires dress code accommodations based on an employee’s disability.

By contrast, there haven’t been many cases involving challenges to sex-based employee dress codes or appearance policies, at least in recent years, said Michael Eastman, senior counsel and vice president for public policy at the Equal Employment Advisory Council, a nonprofit employer association in Washington.

Those types of cases have appeared in the past for specific industries, such as airlines and casinos, but aren’t seen much in other business office scenarios.

In the 1970s, for example, some men challenged company policies that barred men but not women from having long hair. That issue was at the heart of a more recent case against Trump Plaza Hotel that was decided in 1996.

Men generally lost those cases, which helped shape the unequal burdens test, Pizer said.

Some female employees fared better in the 1980s, challenging airline appearance policies based on weight.

Continental Airlines Inc., for instance, had imposed strict weight restrictions on female flight attendants, but not male employees.

The company said the purpose of its weight limitations was to establish its image as an airline whose passengers would be served by “thin” and “attractive” women, referred to as Continental’s “girls.” The airline didn’t say that its policy was necessary for employees that served food and drinks, or performed safety duties. Continental was found in violation of Title VII.

Female casino workers, however, lost similar legal challenges of dress and appearance standards at Harrah’s and the Borgata Casino Hotel & Spa.

Harrah’s required, in part, that female bartenders wear makeup, including face powder, blush, mascara and lipstick, that was “applied neatly in complimentary colors.” Men didn’t have a makeup requirement.

At the Borgata, male and female “BorgataBabes” had to have weight proportionate to their height. Workers who increased their body weight at weigh-in by more than 7 percent were terminated, barring medical reasons.

In both of those cases, courts found insufficient evidence that the requirements posed an unequal burden on women.

What Claims Can Employees Bring?

Employees can raise a number of theories under Title VII to challenge a dress or appearance policy as discriminatory based on sex, practitioners said.

A policy could be discriminatory on its face, thus resulting in the disparate treatment of men or women, Martin of the NWLC said.

But it may be more likely that the policy itself is neutral on its face.

In that case, employees could allege that the policy is disparately enforced, or that the policy has a statistically significant disparate impact on one sex or another, Eastman of the EEAC said.

Workers also could claim that a particular policy violates Title VII by requiring them to conform to stereotypes based on sex, also a type of disparate treatment claim.

The Equal Employment Opportunity Commission, which enforces Title VII, has taken the position that sex stereotyping is a viable, stand-alone claim under Title VII, Hall of Lewis Brisbois said.

Regardless of legal theory, Pizer of Lambda Legal said employees would have to show an unequal burden based on sex to establish a discrimination claim.

Business Needs Defense

Employers can still defend themselves from Title VII liability by proving they have a business need or justification for the sex-based dress code or appearance policy, Pizer said.

For disparate treatment cases based on facially discriminatory policies, this is known as establishing that sex is a bona fide occupational qualification.

BFOQs are generally interpreted narrowly by courts. For instance, courts have held that customer preferences aren’t legitimate business justifications for sex-based policies, Pizer observed.

For disparate treatment claims proven with indirect evidence, like sex stereotyping claims, employers need only offer a legitimate business reason for its policy. An employee would then have to show that the reason is a pretext for discrimination.

Finally, for disparate impact claims, a company can defend itself by showing that its policy is job-related and consistent with business necessity.

The “expectations for one’s appearance can certainly depend on the type of job and the nature of the work environment,” Pizer said.

Strippers, for example, will likely have a difficult time challenging a policy requiring them to wear revealing outfits.

But what about in a more traditional office environment? If an employer merely wants female employees to wear fashionable dresses even though their job duties don’t require it, then it would be hard to imagine the business justification, Pizer said.

A New Wrinkle: Gender Identity Bias Claims

One fairly new issue involving sex-based dress codes involves an employee’s gender identity or transgender status, both Eastman and Martin said.

Transgender men and women have brought discrimination claims against employers that enforce dress codes that are inconsistent with their gender identity, Martin said.

Eastman said the EEOC has taken the position that employers with different dress codes for men and women must allow workers to choose the style of dress that conforms to the gender they identify with.

The agency sued a Michigan funeral home that allegedly fired its funeral director after she revealed she was transitioning from male to female and planned to wear female business attire. The company’s dress code required women to wear conservative dresses or skirt-suits. That case was dismissed last year under a religious exemption to Title VII, but the EEOC has appealed the ruling.

Advice for Employers

Employers may want to consider using dress codes that present workers with a variety of options from which to choose, some commenters suggested.

Others recommended gender-neutral dress codes and appearance standards that broadly focus on professionalism, neatness, cleanliness or whatever qualities the employer associates with its corporate image.

But generalized policies tend to be more vague and can become “more difficult to police,” warned Edward Yost, a human resources business partner with the Society for Human Resource Management in Alexandria, Va.

He recommended that employers provide some guidance regarding dress and appearance. Not only will employees know what’s expected of them, but managers can apply the policies consistently, thereby reducing the risk that the standards are unequally applied, Yost told Bloomberg BNA.

When developing dress codes, employers must determine what’s “truly critical” to the success of their business, he said.

“It is really critical that everyone is in a business suit, male or female?” He asked. “Or can we relax that a little bit due to the nature of the work?”

The “key factor,” he said, is ensuring that the policy is applied equally across every protected class.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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