Dress code at work has always been a sticky subject in terms of employee rights. Some employers charge for uniforms, some make unreasonable demands, some are sticklers for cleanliness when you only have one or two sets of clothes to wear at work. But the biggest dress code problem of all is gender-specific rules that separate the expectations of men and women employees. Usually, these policies tend to disadvantage female employees, but in any situation, a gendered policy may disadvantage men or non-binary gendered employees as well.
Today, we’re here to take a quick look at what is and is not legal in gender-specific dress codes at work. Hopefully, this can help you answer the question of whether the dress code at your workplace is legal and practical or illegally discriminatory.
Illegal Gendered Dress Code Policies:
Put a Greater Burden on One Gender
The California state court has made it clear that some gendered separation in dress code is acceptable, but only if the difference doesn’t put a greater burden of effort and time on one gender or the other. A comparison might be if women are expected to style their hair while men are only expected to keep it short. This is unfair only if women are also not allowed to choose a short low-maintenance style instead of styling longer hair in an approved way.
Open Employees to Sexual Harassment
Many gendered dress codes — especially in the hospitality industry — focus on making female employees more attractive. This can be legally acceptable if it involves dress- and pant-suits, but is unacceptable if it opens female employees up to sexual harassment. Or if the dress code itself constitutes as sexual harassment. For example, if male servers are expected to wear black pants while female servers are expected to wear short black skirts. This exposes female employees to sexual harassment from customers and colleagues.
Prohibit Women from Wearing Pants
California has also made it illegal to force female employees to wear skirts instead of pants. While an employer may set guidelines for both pant and skirt outfits, women must be permitted to wear pants if they would prefer to. If your dress code bans women from wearing pants, then it is illegal in the state of California.
Legal Gendered Dress Code Policies:
Allow Additional Adornment for Women
Social norms can play a part in legal dress codes, particularly in what adornment is and is not allowed. For example, in any formal-dress workplace, it is customary to prohibit earrings, necklaces, makeup, nail polish, and other decorations from male dress codes. At the same time, women are permitted to wear earrings, necklaces, makeup, nail polish, and so on provided it falls within acceptable parameters for the style of workplace dress. This is legal.
Put Restrictions on Hair Styles and Makeup
Workplaces may also put restrictions on hair styles, makeup, and adornment unequally for men and women. Provided that these restrictions are reasonable and go along the lines of the style of business. For example, a workplace may dictate that men must have short hair while women with long hair must style their hair in specific ways that are visually acceptable to the workplace. Provided these styles do not infringe on personal or religious rights, your employer can ask this.
Do Not Put a Greater Burden on One Gender
Workplaces are also allowed to have wildly different dress code expectations for men and women employees as long as those expectations do not put a higher burden on one gender over the other. They can dictate that all women will dress as serving wenches and all men dress in mascot costumes, as long as the costumes take about the same time and effort to put on (and women can wear pants if they want to). They can dictate that all men wear bowler hats and all women wear fedoras. Or that women must wear stockings and men must wear dress socks. As long as the effort to comply is approximately equal.
Policies are Necessary for Business Functions
Finally, businesses are always allowed to set their dress codes based on the needs of the business itself. Though the burden to prove necessity is quite high. Safety always comes first, followed by the appearance of the business and relationship with customers. For example, men may be required to be clean-shaven if they wear masks for work. Women may be required to always have long hair pinned up to stay out of machinery or food. Even religious items like headscarves and yarmulkes may be curtailed or compromised on for safety.
Then there’s image of the business. Most courts will uphold that business-casual or formal dress has some gender expectations, but if a person puts in the effort to look nice within business dress norms, they should be allowed to.
Is your business within the bounds of California law in gender-specific dress codes? If not, there’s something you can do. At Aiman-Smith & Marcy, we have dedicated our careers to defending employee rights no matter how big or little the problem might seem. If your employer is violating your rights or the rights of your colleagues with gendered dress codes, you don’t have to stand for it. Contact us today and our legal team will gladly consult on how to defend your rights to a fair and gender-equal dress code in your workplace.