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Dress Codes Can Be Different for Men and Women

29 July 2010

While it is generally true that you can have different dress and appearance standards for men and women, you need to make sure you are implementing them properly.

Many employers have questions about dress codes, and in particular, whether dress codes can specify different rules for the appearance of men and women. For example, can employers prohibit male employees from wearing earrings or having long hair? As a general rule, the answer is yes, as long as those differences reflect current social norms. (Download free Personal Appearance of Employees (Dress Code) model policy including HR best practices and legal background.) Below you will find out what the courts have said about this issue and get tips on implementing a dress code. * Dress Codes and the Law * Here is a quick overview of the legal issues. When an employer’s dress code differentiates between male and female employees, the charge often is made that a gender specific requirement constitutes sex discrimination in violation of Title VII of the Civil Rights Act (Title VII). However, generally, the courts do not require that both sexes must follow the exact same rules. Instead, they hold only that both sexes, when in similar situations, should be held to the same general standard. As an example, you might say that all office employees with customer contact (regardless of sex) must present a well-groomed, professional appearance. The standard is consistent but the actual rules may accommodate sex-based differences, such as different hair lengths. It is a well-settled principle of law that dress requirements that reflect current social norms typically have been upheld, even when they affect only one sex. The Seventh Circuit Court of Appeals determined thirty years ago in Carroll v. Talman Federal Savings & Loan Ass’n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980) that employers do not have to apply identical dress or grooming standards to men and women when the differences are justified by social norms. Applying the same logic, the Ninth Circuit Court of Appeals found, in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977), that a grocery chain did not violate Title VII because it required only male employees to wear a tie. Also, in the same vein, policies prohibiting male employees from wearing earrings, but allowing women to wear them, generally have been upheld. For example, the court in Kleinsorge v. Eyeland Corp., 81 FEP Cases 1601 (E.D. Pa.), aff’d 251 F.3d 153 (3d Cir. 2000), found that minor differences in personal appearance codes that reflect customary modes of grooming do not constitute sex discrimination. Therefore, the employer’s request that a male employee not wear earrings, when female employees were allowed to so, did not violate Title VII.

* Ban on Long Hair for Males * Men generally have not been successful in claiming discrimination when policies restrict long hair for them only. In fact, the Equal Employment Opportunity Commission (EEOC) typically does not pursue such charges. Most court decisions regarding male hair length have held that male only standards are not sex discrimination. For example, the Eleventh Circuit Court of Appeals, in Harper v. Blockbuster Entertainment, 139 F.3d 1385 (11th Cir.), cert. denied 525 U.S. 1000 (1998), acknowledged the EEOC’s position and found that the employer’s policy prohibiting long hair for male employees did not violate Title VII. * Dress Codes That Impose a Burden * Dress codes that have no basis in social customs, that differentiate significantly between men and women, or that impose a greater burden on women usually are not upheld. For example, again in Carroll v. Talman Federal Savings & Loan Ass’n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980), the employer’s policy requiring all female tellers, office workers, and managerial employees to wear a uniform was found to be discriminatory because male employees in the same positions only were required to wear customary business attire.

In contrast, in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006), the court determined that an employer’s sex-differentiated grooming standards requiring women to wear makeup and style their hair and men to have short hair and no facial makeup were not discriminatory. The complaining female employee did not show that the standards were more burdensome on women than on men. Be aware, too, that at least one state, California, prohibits employers (with some exceptions) from implementing a dress code that does not allow women to wear pants in the workplace.

* Be Practical and Consistent * As a practical matter, you actually have a lot of discretion in what you can require your employees to wear in the workplace. Bottom line, if a dress code is established for business reasons and applied uniformly, it generally will not violate employees’ civil rights, even if it has different standards for men and women.

That said, your dress code should not differentiate between men and women without good reason. To prevent legal claims, your code should reflect current social norms, business needs, and safety requirements. And finally, you should make sure you explain as best you can the underlying rationale for your policy to employees. They may not like your position any better, but at least they will know your intent and purpose.

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