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Dress For Success:Rules and Issues Involving Gender-Specific Dress Codes

By Robert S. Nelson, Esq.

Nelson Law Group

Every now and again court cases are decided where it seems that the judges who made the decisions did not really relate to the subject matter at hand. For example, there do not appear to have been many makeup-wearing judges involved in the majority decision in Jespersen v. Harrah’s Operating Company (even though the opinion was in fact authored by a woman). In that case, the Ninth Circuit Court of Appeals was asked to assume that a dress code that required makeup imposed a disproportionate burden on women than it did on men. The Court, however, said it could not make that assumption without evidence proving that it is really more work for women to put on makeup every day than it is for men to occasionally get haircuts and trim their fingernails. Many people who read that line assumed that only a man could have written it.

As aptly illustrated by Jespersen, differing dress code requirements often elicit differing reactions according to gender lines. What to one side may seem like objective truth (e.g., makeup is really hard work) may to the other side be open to debate. This Mars-Venus dynamic makes gender-specific dress codes particularly tricky, given that the law allows differing dress codes only to the extent that they do not impose disproportionate burdens on either sex. But if disproportion is in the eye of the beholder, then employers may not know whether gender-specific dress codes will be able to withstand legal challenges unless and until they get sued. For these reasons, employers should carefully consider the myriad potential risks of gender-specific dress codes before they attempt to implement them. Because of the high degree of both risk and uncertainty, employers generally should be discouraged from implementing differing dress codes for men and women except where they are absolutely necessary.

1. The Current State of Dress Code Law: Jespersen v. Harrah’s Operating Co.

The Jespersen case neatly summarized both the current law governing gender-specific dress codes, as well as the type of scenarios in which differing dress codes are used. The case involved an employee at a Harrah’s Casino in Nevada who was fired after she refused to follow a company policy that required women (and only women) to wear makeup while at work. The requirement was part of the company’s “Personal Best” grooming and hygiene policy that said that all employees had to wear white, button-down shirts, black pants, black vests and ties at all times. In addition, men were required to keep their hair and fingernails short and well-groomed. Women had to follow specific standards with regard to painting their fingernails, style their hair, and also use foundation, mascara, blush and lipstick.

Ms. Jespersen, a bartender with an impeccable job history, refused the makeup requirements on grounds that they offended her and conflicted with her self-image. After she was fired by Harrah’s, Ms. Jespersen filed a lawsuit under Title VII, the federal anti-job discrimination law. The trial court granted summary judgment in favor of the casino, after which Ms. Jespersen appealed to the Ninth Circuit. On appeal, the Court explained that it is okay to have different dress and/or grooming requirements for men and women, so long as doing so does not place an unfairly heavy burden on either sex. While Ms. Jespersen argued on appeal that Harrah’s makeup requirement imposed a greater workload on women than the grooming standards did on men, she did not present any evidence at trial proving that. The Court held that without any such evidence, it could not assume that Harrah’s makeup requirement placed an undue burden on female employees, so Ms. Jespersen’s Title VII discrimination claims had to be dismissed.

2. Potential Liability for Differing Dress Codes

Many employers cheered Jespersen as a vindication of their respective rights to impose differing dress standards on men and women employees. In fact, the case should be much more of a cautionary warning, given that the Court strongly suggested that the outcome would have been different if the plaintiff had only introduced some evidence proving that makeup requirements are more difficult to adhere to than grooming or other male-specific standards. Given how easy it should be for plaintiffs to prove that, it is unlikely that any future dress code cases will be decided according to the same lack-of-evidence logic as Jespersen.

In addition to discrimination, disparate dress code standards can also subject employers to potential liability for sex harassment. Employees can bring harassment claims if they are selectively required to wear provocative or suggestive clothing (e.g., only waitresses being required to wear short and/or tight skirts). Employees can also bring “stereotyping” claims if they are required to wear outfits that are traditionally “expected” of their respective genders, such as women being required to wear dresses or skirts instead of pants. California law specifically affords female employees the right to wear pants if they so choose.

On a related note, dress codes can also spark religious discrimination claims if they unfairly interfere with employees’ rights to express their respective religious beliefs. Employers generally cannot impose rules infringing on employees’ religious beliefs, unless doing so is a business necessity. “Business necessity” is a very high standard that generally is only found in situations where health and/or safety are at risk (e.g., requiring male employees who have to wear gas masks to shave their beards, making police wear the same standard uniform, etc.). Consequently, most employers cannot prohibit employees from wearing religious garb (e.g., yarmulkes, burkas, etc.) and/or from carrying certain religious objects. Employers must be especially mindful of how dress codes relate to employees who are Sikh. Sikhs generally are required to carry ceremonial daggers called “kirpans,” which can cause issues with no-weapons policies, and/or wear ceremonial bracelets, which may conflict with no-jewelry policies.

3. What Should Employers Do?

Employers should take the following steps before implementing dress codes which impose differing standards on men and women:

  • Think hard whether differing standards are really necessary

As previously explained, it is highly likely that but for a modicum of formal evidence indicating that it really is disproportionately harder for women to wear makeup, Jespersen could easily have come out in favor of the employee. Many experts therefore assume that women-only makeup policies could easily be found discriminatory, if not harassing and/or stereotyping at the same time. Add to this the fact that many selective dress policies are almost certainly illegal (e.g., those requiring provocative clothes, and/or which require women to wear skirts or dresses), and it becomes clear that there are not many ways in which employers can safely impose differing dress code standards according to gender. Employers therefore should carefully consider whether and to what extent differing dress code standards are really worth the many risks that are associated with them.

  • Carefully research disproportionate gender impacts

If employers decide that they really do want to impose gender-specific dress standards, they should carefully research whether and to what extent the standards may impose differing burdens on either sex. To do this, employers should solicit feedback and opinion about the proposed standards from both genders, especially the one that is likely to be disproportionately affected. They should also gather whatever empirical evidence they can (e.g., statistics showing time and amounts spent applying makeup as opposed to cutting hair or shaving) and memorialize what they gather in writing. This information could later be used to show that employers acted considerately and in good faith before implementing gender-specific dress codes.

  • Be open to exceptions

Although the very point of dress codes often to achieve uniformity, employers should not implement and enforce them so strictly that they run afoul of reasonable accommodation laws. Employers should hear out employee requests for exceptions to dress code rules, especially if the requests indicate that the employees may have religious reasons for requesting the exceptions.

  • Seek help

Because of the many different laws they can involve, dress codes issues are exceptionally complex. Employers should therefore seek legal help whenever drafting or updating dress code policies, or when confronted with dress code issues or problems (e.g., employee requests for dress code exceptions, potential disciplinary actions for failure to abide by dress code requirements, etc.).

Robert S. Nelson is the founder of the Nelson Law Group, a San Bruno, California based law firm specializing in labor and employment matters. He can be reached at 415-689-6590, or [email protected].