Creating a Gender Neutral Workplace

August 13th, 2007 | By Jules Halpern Associates | Circuit Court Decisions, Discrimination, Dress Codes, Gender/ Sex, OSHA/Workplace Safety

Sex discrimination claims are typically unsuccessful unless the dress code policy has no basis in social customs, differentiates significantly between men and women, or imposes a greater burden on women. For example, dress requirements that reflect current social norms are generally upheld, even when they affect only one sex. For example, in Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998), the 11th Circuit upheld an employer’s policy that required only male employees to cut their long hair. Employers, however, should be aware that at least one state, California, prohibits employers from implementing a dress code that does not allow women to wear pants in the workplace. According to a provision of the California Government Code, it is an unlawful employment practice for an employer to prohibit an employee from wearing pants because of the sex of the employee. The California law makes exceptions for employees in certain occupations who can be required to wear uniforms.

Fight for Religious Liberty Establishes Unlikely Alliances

Gender dress restrictions, particularly on pants, are the subject of religious discrimination claims as well. Currently, the federal Equal Employment Opportunity Commission (EEOC) is facing a charge from a New York City bus driver who filed a discrimination complaint against the Metropolitan Transportation Authority, which requires that city bus drivers wear pants or culottes. The bus driver was dismissed from her job when refusing to comply with this requirement. The bus driver’s claim is that the Pentecostal Church imbued her with the belief that, among other things, a woman should never wear pants. The dismissal established a seemingly unlikely partnership: an Orthodox Jewish group has joined the Pentecostal Church in defending the bus driver’s right to wear a dress.

Workplace Safety Provides a Strong Employer Defense

Religious discrimination claims may be filed if an employer is unwilling to allow an employee’s religious dress or appearance. For example, a policy may be discriminatory if it does not accommodate an employee’s religious need to cover his head or wear a beard. However, if an employer can show that the accommodation would be an “undue hardship,” such as if the employee’s dress created a safety concern, it probably does not have to allow the exception to its policy. Safety defenses to claims of discrimination in regard to employer dress code policies are popular among employers. For example, the Metropolitan Transportation Authority asserted this defense against the New York City bus driver in the claim brought by the Pentecostal woman who refuses to wear pants.

Race Discrimination Claims Present a Difficult Hurdle for Employees

The Civil Rights Act of 1964, in addition to prohibiting discrimination against any employee because of his/her religion, sex, or national origin, in regard to any condition or privilege of employment, also bans such discrimination based on race or color. Race discrimination claims can be more difficult to prove since the employee must show that the employer’s dress code has a disparate impact on a protected class of employees. One limited area where race claims have had some success is in challenges to “no beard” policies. A few courts have determined that a policy that requires all male employees to be clean-shaven may discriminate if it does not accommodate individuals with pseudofolliculitis (PFB). PBF is a skin condition aggravated by shaving that occurs almost exclusively among African-American males.

Sensitivity to Perfume May Give Rise to a Claim

Employee claims, regarding appearance in the workplace, have arisen in the context of personal grooming as well. An employee in the Detroit planning department filed a federal lawsuit against the City, alleging that her co-worker’s strong perfume has made it impossible for her to do her job. City planner Susan McBride filed her complaint under the Americans with Disabilities Act, saying she is severely sensitive to perfumes and other cosmetics. McBride alleges the City should accommodate her disability by prohibiting people from wearing perfume in the workplace. The case is currently awaiting judicial review.

Tailoring Your Dress Code to the Law

Employers should draft and enforce these policies to avoid discrimination claims. Companies should make sure that both sexes are required to dress to the same degree of formality to avoid claims of sex discrimination. Dress codes that ask employees to act in a way contrary to their religious beliefs or racially unique health-related issues could be seen as indirectly discriminatory. Therefore, employers should set out dress codes that are appropriate for the work involved and reflect business needs. These guidelines need to be understood by all staff – employers who are prepared to explain the justifications for their dress code policies are in a better position to ensure employee compliance. Finally, appearance guidelines need to be enforced in a consistent way.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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Jules Z. Halpern


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