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Is Your Company's Dress Code Discriminatory?

By Mark Wilson, Esq. on September 30, 2014 | Last updated on March 21, 2019

Let's talk dress codes. Obviously, your company can't have a dress code requiring women to wear super-revealing clothes; this isn't Sterling Cooper Draper Price. But dress code discrimination in 2014 takes a different form, by presuming what men and women will wear and dividing them up accordingly or failing to take into account transgender employees or employees of a different religion.

What are the limitations of an employee dress code?

Religious Apparel

Generally, Title VII of the Civil Rights Act prevents employers from discriminating against employees because of, among other things, their religion. This includes prohibiting employees from wearing religious clothing. So, for example, a workplace policy prohibiting headwear must make an exception for a yarmulke if a reasonable exception can be made.

Government policies, however, can override certain practices if the policies are related to health or safety, but only if a reasonable accommodation can be made. If a religion requires a man to have a beard, then a man in food service can be required to cover the beard if food safety laws so require. But it wouldn't be reasonable to require the man to shave his beard because there's a reasonable alternative accommodation.

Gender Discrimination

Workplace dress codes can impose different requirements on men and women, but they can't be unduly burdensome on one gender. With that being said, what's legally permitted and what's normatively permitted are different things. Dress codes can be unintentionally sexist if they refer to clothing differences between men and women for no reason. For example, a policy that says women's tops can't have plunging necklines presumes that women only wear such tops, and also allows men to wear such tops. A better way to say it would be "no plunging necklines."

Such differences also exclude transgender employees, who may or may not identify as one discrete gender or who may not dress in accordance with the gender they appear to be. As we've mentioned before, your company doesn't want to engage in transgender discrimination.

Hair: It's a Touchy Subject

Hair is a touchy subject among African-American women. Go visit the documentary "Good Hair," which discusses the black hair-care industry, to learn more. Many black women alter their hair through the use of chemical relaxers, hot combs, extensions, or wigs. (These hair alterations are variously expensive, time-consuming, and damaging to hair.)

Why do this? Dress codes are one reason. Professor Wendy Greene of Samford University's Cumberland School of Law has written extensively on grooming policies and Title VII, arguing most recently that "characteristics that are commonly associated with a particular racial or ethnic group should fall under Title VII's current protected categories of race, color, and national origin." Currently, employers can prohibit hairstyles like dreadlocks, Afros, and corn rows -- even though those hairstyles are isolated mostly to a particular ethnic group.

A normatively good workplace dress code wouldn't prohibit hairstyles by name, but would instead mandate that hair be clean, neat and trimmed, whatever style it's in.

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