When Do Dress Codes That Perpetuate Gender Stereotypes Cross the Line?

​A company owner adopts a dress code that applies mostly to the women in his office: They must wear skirts or dresses; their shoes must have heels; makeup is required; earrings and necklaces should be understated, not too "bold" or "loud."

Women in the office are angry. Some hate wearing heels and makeup; others will have to buy new wardrobes. Is this a lawsuit waiting to happen?

That's hard to tell.

Dress codes based on gender stereotypes can involve a tricky area of the law, said Ernest Haffner, an attorney in the office of legal counsel at the Equal Employment Opportunity Commission.

If any employee were to sue her employer for gender discrimination because of its dress code, "Courts … are going to look at an overall grooming policy and whether it imposes more burden on women than on men," Haffner said.

Courts and Dress Codes

Company dress codes run the gamut from requiring formal business attire to allowing jeans and T-shirts. For instance, investment bank Goldman Sachs this month told employees that it was loosening its approach to office attire, moving to "a firmwide flexible dress code" and asking employees to "dress in a manner that is consistent with your clients' expectations." 

Typically, employers should feel comfortable setting different dress standards for men and women.

"Generally speaking, courts have upheld dress codes that are different for men and women and [that] have required, essentially, compliance with gender stereotypes, such as men cannot wear makeup while women must," said Debra Weiss Ford, an attorney with Jackson Lewis in Portsmouth, N.H.

But employers may face lawsuits if they get too particular about how women or men should dress. They need to be careful not to run afoul of laws that protect workers based on sex, sexual orientation and gender identity.

[SHRM members-only Express Request: Relaxed Dress Code for Summer]

Is the Dress Code More Burdensome to One Gender?

Federal courts have historically allowed different dress standards at work if policies are reasonable and don't place a significantly higher burden on one gender.

In one landmark case, a bartender sued her employer because it began demanding that she wear makeup to work. In the case, Jespersen v. Harrah's Operating Co., the 9th Circuit Court ruled in 2006 that the makeup requirement didn't amount to sex discrimination against the bartender.

"Although the [employer's] standards required female employees to wear makeup but prohibited men from doing so, the court ruled that the grooming standards, taken as a whole and not limited to the makeup requirement, did not unduly burden women as compared with men, who had to comply with other stan­dards," Haffner said.

A court might find it discriminatory if a dress code required women to spend considerably more money on work clothes and grooming. For instance, if a female worker's wardrobe consists mostly of pantsuits and flats that she's been allowed to wear to work, and a company suddenly requires dresses, skirts and heels, she may have to buy new clothes. Or, a court might rule that requiring women to have intricately styled hair and nails would create a financial burden that the men don't have.

"Generally, dress codes should not single out female employees," said Robin Shea, an attorney and partner with Constangy Brooks, Smith & Prophete in Winston-Salem, N.C.

However, it's possible that such a dress code could pass legal muster if a company reimbursed women for the new clothing that he requires them to wear, she said, or provided an appropriate clothing allowance.

Aside from legal considerations, she said, "from a pure employee relations standpoint, I think it is a bad idea to require employees to purchase clothes at their own expense that they would not wear otherwise and that they [maybe] cannot afford."

Gender Identity

It's never a good idea to base the rationale for a dress-code policy on an employer's desire that women act more "feminine" and men act more "masculine." 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."

When Men Feel Dress-Code Discrimination

Men may feel discriminated against, too, by workplace dress codes. For instance, here are some common disparities in dress code policies for men and women:

• Women may wear open-toed sandals, while men may not.
• Men must wear long pants, while women may wear cropped or capri-style pants, or skirts and dresses.
• Men may not wear earrings, while women can.
• Men must wear their hair short, while women can wear their hair any length.

"Courts have universally said that it's lawful to have policies that allow women to grow their hair long but not men," Haffner said. "There are some [dress codes]  that reflect the way society sees women and men wearing their hair."

Michele Brenner is an HR professional who recently posted her thoughts about dress codes on the Society for Human Resource Management's (SHRM's) online discussion platform, SHRM Connect. She suggested that if a dress code seems discriminatory, HR should talk with a company owner and try to understand his or her rationale for it. It might also be important, Brenner said, to explain how the dress code, even if legal, may cost the company "in terms of loss of productivity, decrease in morale [and] increase in turnover."

"Perhaps … you may want to let [a company leader] know that in an economy where we have 4 percent unemployment, it's not necessarily wise to alienate employees."