6/30/2012 9:59:00 PM Can dress codes be gender-specific?
by TOM ROEGGE SCORE Counselor
The Courier ran a SCORE article a few weeks ago on the advantages of implementing a dress code. This brought several responses from readers who wanted information addressing gender-specific dress codes.
Decorum is the objective for any dress code. You want your employees to appear neat, clean and modestly attired. As Susan Heathfield stated in her article for www.humanresources.about.com, "Clothing that reveals too much cleavage, your back, your chest, your feet, your stomach or your underwear is not appropriate for a place of business, even in a business casual setting."
As an employer you can request that body piercings be removed during work hours and that excessive tattoos be covered with clothing, as these - just as rumpled clothing or scantily clad employees - can be offensive to customers. But beware of putting in place a dress code that targets gender specific regulations. That can leave your company vulnerable to discrimination lawsuits.
Title VII of the Civil Rights Act (CRA) 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. In addition, section 102 of the CRA added a new section following section 1977 to provide for the recovery of compensatory and punitive damages in cases of intentional violations of Title VII, the Americans with Disabilities Act of 1990, and section 501 of the Rehabilitation Act of 1973 (www.
Writing for www.findlaw.com, Joanna Grossman, a professor of law at Hofstra University, sites Price Waterhouse v. Hopkins. "In Price Waterhouse, the plaintiff, Ann Hopkins, was denied partnership in an accounting firm, at least in part because she was too aggressive, cursed like a truck driver, and did not walk, talk, or dress in a feminine manner. In short, she was a woman who acted like a man, and for that, she was dealt a career-stunting blow.
"Ruling on Hopkins's sex discrimination lawsuit, the court held that Title VII forbids employers from discriminating against an employee for failing to live up to gender role expectations. You can't, in other words, punish a female employee for not being feminine enough. That sort of gender policing, the court ruled, violates Title VII. In an oft-quoted line, the majority observed that: 'We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associate with their group.'"
Although courts vary in their interpretation of cases regarding gender-specific biases, (see Jespersen v. Harrah's Operating Co.), it is more prudent to have a dress code that applies equally to both sexes, thus avoiding entirely leaving your company exposed to a possible lawsuit.
Robert S. Nelson, in an article for www.rnelsonlawgroup.com, states, "In addition to discrimination, disparate dress code standards can also subject employers to potential liability for sex harassment. Employees can bring harassment claims if they are selectively required to wear provocative or suggestive clothing (e.g., only waitresses being required to wear short and/or tight skirts). Employees can also bring "stereotyping" claims if they are required to wear outfits that are traditionally "expected" of their respective genders, such as women being required to wear dresses or skirts instead of pants.
"On a related note, dress codes can also spark religious discrimination claims if they unfairly interfere with employees' rights to express their respective religious beliefs. Employers generally cannot impose rules infringing on employees' religious beliefs, unless doing so is a business necessity. 'Business necessity' is a very high standard that generally is only found in situations where health and/or safety are at risk (e.g., requiring male employees who have to wear gas masks to shave their beards, making police wear the same standard uniform, etc.). Consequently, most employers cannot prohibit employees from wearing religious garb (e.g., yarmulkes, burkas, etc.) and/or from carrying certain religious objects."
Be sure to check out the advice at www.SBA.gov on dress code policies and rely on your SCORE counselor as a resource for guidance in setting up your company's dress code policy.
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