I. INTRODUCTION
Employers may establish reasonable dress codes and grooming standards provided that the policies are not used as a pretext for excluding members of one sex for employment. Policies that do not impose unreasonable burdens upon the members of one sex are permissible. When reviewing lawsuits alleging gender-based discrimination under Title VII of the Civil Rights Act of 1964, many courts have held that different dress code and grooming standards for males and females are not actionable; however courts have found gender-specific dress and grooming code standards are subject to discrimination claims when they are based on “offensive stereotypes” and appear to be either demeaning or one-sided.
II. PERMISSIBLE DRESS CODES AND GROOMING STANDARDS
Different dress standards may be established for male and female employees without being discriminatory, if such policies are based on business necessity. Policies with minor differences in personal appearance and that reflect customary grooming standards do not usually constitute sex discrimination within the meaning of Title VII. Different standards of hair grooming for men and women may not give rise to a Title VII claim. Courts have generally recognized that an employer is allowed to exercise legitimate concern for the business image created by the appearance of its employees, including the termination of employees for noncompliance with their employer’s dress code.
A review of court rulings shows that employers may require male employees to wear ties and to be shaved or clean-shaven. Employers may also specify appropriate hair length limitations for male employees and prohibit “cornrow” hairstyles. An employer was held not in violation of Title VII for requiring grooming standards and wardrobe approval of a female news anchor where male news anchors were similarly reviewed by the television station. As a rule, more restrictive dress codes for female employees than for male employees do not violate Title VII unless compliance with the employer’s policies would reduce a woman’s employment opportunities or her ability to perform the work.
III. IMPERMISSIBLE DRESS CODES AND GROOMING STANDARDS
When dress codes are substantially more onerous for members of one sex and have an adverse effect upon their compensation or conditions of employment, the dress code is likely to be held unreasonable and may not be enforced. The leading case that addresses the issue of impermissible dress codes in the workplace is Carroll v. Talman Fed. Sav. & Loan Ass’n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980). In this opinion, the court held that it was unlawful for an employer to require only females to wear workplace uniforms when those uniforms had to be cleaned and replaced at the employee’s own expense and were treated as income for federal tax purposes.
The facts of this case reveal that, for several years, Talman Federal Savings & Loan Association (“Talman”) had a policy requiring both male and female employees to wear uniforms. The policy was later amended to allow men to wear “customary business attire” but in order to reduce “dress competition” among its female staff, continued to require women to wear uniforms (a skirt or slacks, paired with a color-coordinated vest and/or jacket or tunic). Mary Carroll filed suit in federal district court on behalf of herself and others similarly situated, alleging that the uniform requirement for women violated Title VII of the Civil Rights Act. The district court found that the dress policy did not prevent employment opportunity for women. Carroll appealed to the Seventh Circuit Federal Court of Appeals, which reversed and remanded the case to the lower court.
The Circuit Court held that § 703 of the Civil Rights Act was intended to strike at the entire spectrum of disparate treatment resulting from sex stereotypes and not to overthrow all sex-differentiated societal mores. Although the Court noted that “we do not view the recognition of different dress norms for males and females to be offensive or illegal stereotyping”, it concluded that Talman’s dress code treated the sexes too differently, without adequate justification:
So long as they find some justification in commonly accepted social norms and are reasonably related to the employer’s business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women. However, the situation is different where, as here, two sets of employees performing the same functions are subjected on the basis of sex to two entirely separate dress codes — one including a variety of normal business attire and the other requiring a clearly identifiable uniform. This different treatment in the conditions of employment for female employees cannot be justified by business necessity, since . . . the employer had a variety of non-discriminatory alternative means of assuring good grooming. Moreover, the disparate treatment is demeaning to women. . . . [W]hen some employees are uniformed and others not there is a natural tendency to assume that the uniformed women have a lesser professional status . . . . The employer’s stated justification for the policy is that ‘dress competition among women is reduced . . . . [Women’s] selection of attire . . . is not a matter of business judgment. It is a matter of taste . . . . When we get into that realm . . . problems develop.’ Clearly these justifications for the rule reveal that it is based on offensive stereotypes prohibited by Title VII.
604 F.2d at 1032-33 (footnote omitted).
The court criticized Talman’s stereotypical assumption that men would exercise good judgment in choosing business apparel but that women would not.
In another case where a dress code was struck down as unreasonable, an employer was held to have violated Title VII by terminating a female lobby attendant because she refused to wear a sexually provocative uniform. In EEOC v. Sage RealtyCorp., 507 F.Supp. 599 (S.D.N.Y. 1981), the federal district court found that the uniform subjected the employee to sexual harassment, ridicule and interference with her ability to perform her work. The court ruled that the uniform requirement was not a proper exercise of the employer’s prerogative to impose reasonable dress standards because of its substantial negative effect upon the employee’s employment opportunities and working conditions.
In a “grooming standard” case, the federal Ninth Circuit Court of Appeals held that an employer discriminated against its female flight attendants by imposing weight requirements for them, but not for male employees [Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (1982)]. Courts have held that appearance policies relating to immutable characteristics, disabilities and religious beliefs can be challenged under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act or the Rehabilitation Act as being discriminatory. An employer may defend against these types of claims if it can show a valid business justification for the policy.
The Equal Employment Opportunity Commission (EEOC), in its Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory (effective July 14, 1992 and superseding the Policy Guidance of March 7, 1991 on Disparate Treatment) uses the following example in illustrating a case of direct evidence of discrimination:
Example 3 - CP (female) files a charge with the Commission alleging that R’s dress code discriminates against women. Specifically, CP claims that R’s policy of requiring females to wear mini skirts is discriminatory and also constitutes sexual harassment. Records indicate that R has no specific dress code policy for men in its employ. The Commission’ investigation further reveals that R’s dress policy for women does not have any relationship to its business. This is an example of direct evidence of discrimination which manifests itself in the form of an overt policy instituted and maintained by R.