Think Tank: Is Your Company’s Dress Code Illegal?
Your body, your choice. Unless you’re getting dressed for work, that is, in which case your selected attire may take into account not only the minimal restrictions of public decency law but also a corporate dress code or even a uniform. The balance of power with respect to workwear is shifting in favor of employees, however, to the extent that traditional rules regarding the length of a woman’s skirt or a man’s hair are going from outdated to outright illegal.
Historically, modernization of dress in the U.S. took the form of social rather than legal initiatives. First-wave feminists advocated both women’s suffrage and dress reform, from the adoption of bloomers to the removal of corsets, and the second wave engaged in at least one storied public display of bra-burning while demanding the right to wear trousers.
For men, a half-century of casual Fridays, spurred by the Hawaiian shirt industry’s scheme to boost sales in the Sixties and Dockers’ desire to sell more khakis in the Nineties, culminated in modern titans of industry wearing turtleneck sweaters and hoodies on a daily basis. Meanwhile the law lagged behind, scolding those who showed too much skin or otherwise offended.
Today, law is leading the charge against compulsory conformity in workplace dress, at least in key jurisdictions — but even many fashion companies remain unaware of the new rules. Gender-specific dress codes, for example, are prohibited in New York City. A company could theoretically require dresses and heels for female employees, but it would have to do the same for male employees.
Mandatory uniforms are permissible, but only if there are no restrictions on which items are worn by men and which by women. After a discussion of this policy at the annual Fashion Law Institute symposium last year, over 20 well-known fashion brands reported that they had changed their dress codes, and others continue to follow suit.
Federal law in the U.S. is more lenient with respect to gender and dress codes, allowing differential rules so long as the policies don’t burden men or women unequally or constitute discrimination on the basis of sex stereotype. In one leading case, a divided appellate court refused to condemn a Nevada casino’s rule that a female bartender was required to wear makeup while her male counterparts were permitted — indeed, required — to leave their faces bare. If the Millennial trend toward gender fluidity continues, however, similar rules may be increasingly difficult to enforce. Brand management considerations also militate in favor of gender neutrality, since international corporations attempting to maintain a consistent look from one boutique to the next must take into account the most rather than the least employee-empowering laws.
Earlier this month the British Parliament took up the debate, prompted by a petition that garnered over 150,000 signatures after a receptionist was sent home from work for refusing to wear high heels. Although existing U.K. law is similar to U.S. federal law in requiring parity but not identical dress codes, the investigating committees uncovered stories not only of perilous and painful pumps, but also of women instructed to dye their hair blonde, wear revealing clothing, and continually reapply makeup. The inquiry remains open.
Meanwhile, workers of all genders chafe at dress codes necessitating the purchase of clothing that is suitable only for work or is simply an unwanted expense. Young fashion retail salespeople required to wear their labels’ in-season merchandise are sometimes fans of the brand who essentially “will work for wardrobe,” but employees who aspire to a more robust paycheck — like the 62,000 who were certified in a class-action lawsuit against Abercrombie & Fitch — have been known to object.
U.S. federal law prohibits mandatory clothing costs that effectively lower employees’ compensation below the minimum wage, as Disney recently learned at a cost of $3.8 million. Many states, including California, go a step further and require employers to pay for official uniforms, which may include any apparel and accessories of distinctive design and color, with or without the company logo. Employers can safely maintain brand image while avoiding expense, however, with generic directives like a requirement that employees wear black.
Like their budget-conscious colleagues, employees who wear religious garb are exercising expanded freedoms of late. Three decades ago, the Supreme Court refused a Jewish military officer the right to wear his yarmulke while in uniform, a decision that prompted an act of Congress to reverse the policy. Fast-forward to 2015, when the Court vindicated a Muslim woman’s desire to both wear a hijab and work at Abercrombie — a company whose since-revised “look policy” gave rise to repeated controversies.
So what’s next in an era of sartorial self-expression and increasingly unenforceable dress codes — Hooters guys? Post-gym sweats on the sales floor? C-suite see-through? Not just yet — in practice, companies can still implement dress codes that reflect brand identity, so long as the rules avoid discrimination, allow for reasonable accommodation, or involve a bona fide occupational qualification. An effective modern dress code requires careful tailoring, but the following are a few points to consider:
Gender neutrality — While most jurisdictions still permit distinctions, neutral rules are the most forward-looking option.
Religious accommodation — Fundamental rights are always “in,” though legal requirements vary by country.
Cultural awareness — Facially neutral policies aren’t necessarily evenhanded, as the U.S. Army learned to its chagrin upon issuing now-updated women’s hairstyle policies that failed to take account of racial differences.
Attention to disability issues — Be prepared to replace uniform buttons with Velcro or otherwise accommodate employee needs.
Consistent enforcement — Different roles may call for different rules, but within each area or department, employees should be held to equal standards.
Consideration of cost — Employees, the cfo, and/or in-house counsel will be grateful.
Above all, remember that even a legally sound dress code can invoke the ire of the internet. United Airline’s recent denial of boarding to “pass riders” — employees or their dependents flying standby — wearing leggings led to social media outrage and even a taunting tweet by competitor Delta. And while the airline’s president may have privately appreciated the #dresslikeawoman campaign showing female astronauts, judges, athletes and more that flooded social media following reports of his workplace standards, most companies don’t care to be dressed down publicly.
Professor Susan Scafidi teaches at Fordham and is founder of the Fashion Law Institute.
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