Strict Dress Codes May Lead to Discrimination Claims

By Lisa Nagele-Piazza, J.D., SHRM-SCPNovember 6, 2018

Company dress codes run the gamut from requiring workers to wear formal business attire to allowing them to sport jeans and T-shirts. Employers can usually set guidelines for business-appropriate attire, but they may face lawsuits if they get too particular about how women or men should dress.

For instance, a woman in Long Island, N.Y., is suing her employer for discrimination because she was allegedly fired for dressing too much like a man, according to The New York Post. The timeshare saleswoman, who is a lesbian, wore a pantsuit and tie to work, which an HR representative allegedly told her was unprofessional. The saleswoman was told to "observe the ladies" in the department, who she said wore dresses and heels.

Employers can generally set different dress standards for men and women, but they need to be careful not to run afoul of laws that protect workers based on sex, sexual orientation and gender identity. Here are SHRM Online resources and news articles from other trusted media outlets on dress codes and discrimination.

Reasonable Differences Historically Allowed

Some employers have dress codes that require men to have short hair and wear pants and allow women to have hair of any length and wear dresses or skirts. Women may be required to wear make-up and men might be told not to. Federal courts have historically allowed different standards if policies are reasonable and don't place a significantly higher burden on one gender in terms of the cost and time it takes to comply. However, employers may get into legal trouble if they tell workers to conform to sex-based stereotypes, such as asking women to dress or act more feminine or men to appear more masculine.

Perception of Gender Is Changing

An employee's clothing choices may reflect his or her gender identity, and employers should note that at least 20 states now prohibit discrimination based on gender identity. For example, a New Hampshire law prohibits employment discrimination based on "a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth." Employers should ensure that their policies are compliant with such laws and that they are providing a safe and respectful workplace for all employees.

More Discrimination Pitfalls

Employers with dress codes also must ensure they are not discriminating based on other protected characteristics, such as national origin, race or religion. According to the Equal Employment Opportunity Commission (EEOC), businesses can establish a dress code that applies to all employees, or employees in a particular role or unit, but there may be some exceptions. For example, an employer may need to make a reasonable accommodation for an employee with a disability. Additionally, the dress code should be consistently applied. A policy that permits casual attire but prohibits traditional ethnic attire might lead to a national-origin discrimination claim.

Trend Toward More-Casual Dress

In recent years, many companies have adopted casual dress codes. Employees and job seekers may view a less formal dress policy as a perk that sets the tone for corporate culture. Employers may want to poll their staff to find out what employees want to wear to work and what they don't want to see their co-workers wearing. But do flip-flops, shorts and active wear push the boundaries too far? In many settings, the answer may be an unequivocal, "Yes." Consider setting clear guidelines for employees so they know what is acceptable and what is not.