Law Offices of Dan A. Atkerson

Is Having a Dress Code for Women Sex Discrimination?

By Dan Atkerson on May 23, 2016

Photo of a man and a woman at workBased on the history of occupational sexism in the United States, it might be easy to imagine a woman in the 1950s being forced to change her clothes, shoes or makeup based on a male manager’s opinion. Thankfully, those days have largely passed, but some employers still cling to the past on the issue.

Say you have a presentation coming up, and you’ll be in front of all the heads of the company you work for, when your supervisor approaches you and tells you to put some lipstick on and swap your flats for some heels. Would you do it? Would that supervisor make the same demand of one of your male coworkers? Is it sex discrimination?

Are Women's Dress Codes Sex Discrimination?

In 1989, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act prohibits “sex stereotyping” after a woman who wasn’t acting “feminine enough” was passed up for a promotion because of the way she looked.

Companies are allowed to impose a dress code on the people they employ, but they cannot hold men and women to different standards. Putting unequal burden on an employee because of their sex, religion, race, or other protected class is illegal. But it’s not that simple; in some cases, the courts have ruled in unexpected ways.

Take, for example, the case of Jespersen v. Harrah’s Operating Co., Inc., in which a women sued her employer, a casino, for requiring women to style their hair and wear make-up. The courts decided the outcome based on the casino’s “Personal Best” grooming policy, which stated that all employees regardless of gender were required to be “well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform.” The courts did not believe that this policy placed an undue burden on one gender over the other, did not discriminate based on the plaintiff’s immutable characteristics and did not violate the rule against sex stereotyping. Therefore, it was not discriminatory.

In short, the answer to whether or not dress codes are sex discrimination is that it depends. As with most other employment law situations, there is a lot of room for interpretation since the laws can be somewhat complicated and frustratingly vague.

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