Can Employers Impose Dress Codes and Appearance Standards?
Florida law does not expressly regulate private employers’ imposition of dress codes or personal appearance standards in the workplace. But certain limitations are imposed by federal and state laws prohibiting employment discrimination in the workplace.
As noted by the EEOC, in most cases employers are required to make exceptions to their usual rules to permit employees to observe religious dress and grooming practices, such as wearing religious clothing or articles (e.g., a Muslim hijab or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a an Orthodox Jewish woman’s practice of not wearing pants); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).
In EEOC v. Abercrombie & Fitch, 135 S.Ct. 2028 (2015), Samantha Elauf, a teenager who wore a headscarf or hijab as part of her Muslim faith, applied for a job at Abercrombie & Fitch. She was denied employment for failing to conform to the company’s “Look Policy,” which banned head coverings. On June 1, 2015, the U.S. Supreme Court held that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice.
As a general rule, employers may have dress or personal appearance codes that differentiate between men and women without violating the laws against gender discrimination. See Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1110 (9th Cir. 2006) (upholding a sex-differentiated appearance and grooming policy that required women to wear makeup but prohibited men from wearing makeup).
But a dress code may not impose a heavier burden on one sex than another absent a legitimate business justification for the difference. For example, if an employer were to require women – but not men – to wear a blazer at work, but could not provide a legitimate business reason for the distinction, that would be a discriminatory practice. Rohaly v. Rainbow Playground Depot Inc., 134 Wn. App. 1051 (Wash. Ct. App. 2006).
In Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 2012 WL 1435995 (EEOC 2012), the EEOC ruled that discriminating against an individual based on gender identity, change of sex and/or transgender status is a form of sex discrimination and, thus, is actionable under Title VII. Similarly, in Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011), the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama), in a public sector Equal Protection Clause case, held that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” The defendant testified that he fired the plaintiff because he considered it “inappropriate” for her to appear at work dressed as a woman and that he found it “unsettling” and “unnatural” that Glenn would appear wearing women’s clothing. Id. at 1320. The court noted that this was direct evidence of discrimination, and that “[i]f this were a Title VII case, the analysis would end there.” Id. These cases suggest that dress and appearance codes that rely on gender stereotyping, and which are imposed even against transgender individuals, could result in liability under Title VII. Still, it must be noted that the law on this point is not well-settled. See, e.g., Creed v. Family Exp. Corp., 105 Fair Empl. Prac. Cas. (BNA) 329 (N.D. Ind. 2009) (rejecting plaintiff’s claim that defendant’s dress code and grooming policy discriminates on the basis of her transgender status; “rightly or wrongly, Title VII’s prohibition on sex discrimination doesn’t extend so far.”).