Gender Identity Bias and Employer Dress Codes

On October 8, the Supreme Court will hear arguments whether gender identity is a protected classification under Title VII of the Civil Rights Act, in addition to sex, race, color, religion, and national origin.  R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., No. 18-107.  Whatever the Court decides, its opinion could have a profound impact on dress codes in the workplace.  The case before the Court arose out of the termination of a transgender employee who refused to continue to dress in a manner the Funeral Home deemed appropriate for her prior gender.  The employer argued that her personal appearance would be distressing to their clients.

Dress codes, though subjective, are important.  Earlier this year, I walked out of a restaurant because the wait staff looked like people I did not want to handle my food.  Currently, federal law does not expressly prohibit personal appearance discrimination.  State and local jurisdictions, however, have taken a different approach.  Some jurisdictions prohibit “personal appearance” discrimination, and California has just added “discrimination on the basis of hairstyle” as a prohibited employment practice.  Does this mean that employees who are in danger of being fired for performance reasons can forestall their termination by shaving their heads, cutting their hair in an odd way, or dyeing their hair to look like a rainbow?  Perhaps.

In some jurisdictions, government civil rights agencies recognize certain hairstyles as being connected with African American identity – dreadlocks, cornrows, Afros, and Bantu knots for example.  Actions based on those hairstyles could be viewed as race discrimination in those jurisdictions.  There can also be issues related to religious dress, such as yarmulkes, burkas, and certain jewelry, such as crosses.  Religious practices are required to be accommodated unless making that accommodation would create an undue hardship on the employer.

The Supreme Court could further endanger dress codes and personal appearance requirements by ruling that gender identity discrimination is illegal.  Personal appearance and manner of dress are at the core of many gender identity issues, as they are in the case of racial identity, religious practice, and to a certain extent, disability discrimination.  The “sensibilities” of your clients or customers may no longer be relevant in the personal appearance arena.  Those sensibilities have not been relevant with respect to race, color, sex, national origin, or religion since the early days of Title VII.

We generally recommend that employers be aware that decisions based on personal appearance must be carefully evaluated.  Your emphasis needs to be on hygiene, professionalism, and good grooming.  Neatness counts (tuck in your shirt), employees should not smell badly, and employees should not wear clothing that borders on the indecent.  After that, however, employers need to decide if the employee’s appearance is somehow connected to a protected classification.  It helps if your business has a dress code that emphasizes hygiene, professionalism, and good grooming, giving guidelines that comport with your jurisdiction’s laws on personal appearance.

As stated above, the Americans with Disabilities Act may play a role in your personal appearance decisions.  A disfigurement or physical characteristic could be a protected disability, and excluding an employee because of physical appearance could be a violation of the ADA.

If you must make a decision based on an employee or applicant’s personal appearance, do your best to justify the decision based on good hygiene and good taste.  The prejudices of your customers, however, are not a good reason for a decision.  The customer has a right to expect good, courteous service from a clean, neatly dressed employee — not necessarily an employee with the same cultural background or taste in clothes, hairstyle, or jewelry.

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