Blog Post: Gendered Dresscodes, Make Up Policies and The Transgender Question

Now that you have a basic understanding of the ways in which a dress code might surface as evidence in litigation, you may be ready to throw in the towel and let employees wear pajamas to work. But, must you? Short answer: No, you may regulate employee dress. You may even have different policies for men and women. We'll start there.

Gender

It is generally accepted that dress codes may differentiate between men and women so long as they do not impose a heavier burden on one gender than the other. If the policy imposes a heavier burden or more restrictions on one sex or the other, courts look for additional information supporting a business justification for the policy. For example, courts agree that dress codes cannot generally require females to wear uniforms if males are not required to do so, if the employees are performing the same job.

After analyzing the burden posed by a gendered dress code policy, courts will look to whether the employer can articulate a legitimate business reason to justify the burden. If an employer can articulate a legitimate, nondiscriminatory reason, even a dress code that places a higher burden on one sex over the other may be upheld. For example, one state trial court upheld an enhanced dress code for female employees at a male inmate educational campus, due to the legitimate and nondiscriminatory (if somewhat paternalistic) justification that "provocative, revealing and inappropriate attire by females" would create an inherent security risk.

Makeup Policies

OK, so you can tell people what to wear. Can you tell them not to wear green eye shadow?

Courts seem to agree that employers may regulate female employee's makeup use. In Jespersen v. Harrah's Operating Co., the Ninth Circuit heard the complaint of a female bartender who was terminated for refusing to wear makeup. She sued under a theory of disparate treatment and disparate impact sex discrimination under Title VII. The Ninth Circuit found that Harrah's "required all bartenders, men and women, to wear the same uniform of black pants and white shirt, a bow tie, and comfortable black shoes. The standards also included grooming requirements that differed to some extent for men and women, requiring women to wear some facial makeup and not permitting men to wear any." Jespersen did not wear makeup on or off the job and testified in deposition that wearing makeup would conflict with her self-image and interfere with her ability to do her job. However, the Ninth Circuit found that Jesperson had failed to support a disparate impact, harassment or stereotype claim, explaining that "[g]rooming standards that appropriately differentiate between the genders are not facially discriminatory."

Conversely, in Wislocki-Goin v. Mears, the Seventh Circuit affirmed the termination of an employee for wearing excessive makeup and wearing her hair down in violation of a "Brooks Brothers look" dress code.

Transgender Status

What about transgender employees?

Though the Colorado Anti-Discrimination Act ("CADA") was amended in August 2007 to include protection for sexual orientation and transgender status, as of October 2009, Title VII does not list sexual orientation or transgender status among its protected classes. Cases such as Etsitty v. Utah Transit Authority, decided in 2007 by the Tenth Circuit, make clear that transgendered employees do not currently enjoy protection independent of other protections (such as race or national origin) under Title VII.

However, as stated by the Sixth Circuit, "[s]ex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as 'transsexual,' is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender nonconformity." Employees have challenged dress codes as discriminating against transsexuals under the Title VII gender stereotyping theory first recognized in Price Waterhouse v. Hopkins, but their individual success has varied depending on the facts of each particular case.

Addressing the avenues for a transsexual to pursue claims under Title VII, though transgender status is not a protected class under Title VII, the Tenth Circuit quoted the Sixth Circuit when it held, "[J]ust as an employer who discriminates against women for not wearing dresses or makeup is engaging in sex discrimination under the rationale of Price Waterhouse, 'employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.'"

What does this mean? It probably means that, if you adopt a gendered dress code policy, that you must allow the employee to dress according with the gender with which they identify, and may not require them to dress according to their birth gender. But, as the cases in this area are few and far between, and as courts have not yet grappled with the CADA amendments, we should sit tight and stay tuned on this one.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.