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Is My Dress Code Policy Discriminatory?

“Leonard works as a clerk typist for a large employer. He likes to wear jewelry, and his attire frequently includes earrings and necklaces. His boss, Margaret, thinks it’s ‘weird’ that, as a man, Leonard wears jewelry and wants to be a clerical worker and eventually develop his career in the area of customer relations. She frequently makes sarcastic comments to him about his appearance and refers to him ‘jokingly’ as her ‘office boy.’”

The above hypothetical appears in the “model” training program from New York State to assist employers in meeting New York’s new requirement that all employees undergo harassment training on an annual basis. Employees are asked whether Margaret was justified in challenging Leonard’s use of jewelry. The “model” answer to the hypothetical is that Margaret’s comments constitute illegal sex stereotyping.

Most human resources managers and employment lawyers would probably agree that Margaret’s sarcastic comments are problematic and may be evidence of a discriminatory animus. But suppose instead that Margaret had spoken to Leonard privately and had simply suggested that she would have difficulty promoting him to a position where he would have to interact with the public because he does not dress professionally. Would this still amount to a form of gender discrimination?

It likely would depend on the circumstances. If Leonard’s decision to wear jewelry is tied to his gender identification, many federal courts and the EEOC would conclude that the decision to deny him a transfer based on his jewelry violates Title VII. On the other hand, an employer would still be justified in not promoting an employee into a public position if the employee’s dress is considered unprofessional. An employee does not have a legal right—and thus protection under employment laws—to come to work dressed like Alice Cooper or Zsa Zsa Gabor simply because that is how he or she chooses to dress. Making a fashion statement is not a protected activity.

Notwithstanding the challenges presented by expanded views of gender (for example, Facebook offers some 50 gender options for people to identify themselves by), employers can still regulate their workplaces for clothes that are sexually suggestive or too casual. Employers may also prohibit showing tattoos, although many employers have abandoned those rules when they have realized the number of talented millennials that they have excluded from their applicant pools by having such rules. In that same vein, employers may also enforce rules regarding excessive makeup or elaborate jewelry, so long as they are consistent in applying these rules to all employees regardless of their gender identification. Yes, the world is more complicated than it used to be, but you can still have a dress code policy. You just have to be more careful.

Finally, while this particular hypothetical addresses the potential conflict between dress codes and gender identities, as Abercrombie and Fitch learned a few years ago, dress codes that require a particular “look” can sometimes run afoul of laws that prohibit discrimination based on national origin or religion.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.