Gendered Dress Codes

At odds with this line of cases is a line of jurisprudence holding that Title VII does not prohibit gendered dress or grooming codes. In these cases, courts have typically held that as long as the burden of the dress codes is equal for both men and women, the dress code does not violate Title VII. See, e.g., Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1109-10 (9th Cir. 2006); Knott v. Mo. Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1088 (5th Cir. 1975). As a result, employers may have been advised that they can maintain gendered dress codes, or grooming standards, without fear of violating federal anti-discrimination laws.

While the case has not yet been heard, the growing consensus that federal anti-discrimination laws protect transgender employees is on a collision course with jurisprudence permitting gendered dress codes. Take, for example, an employer with different standards for men and women regarding hair length. How would the employer determine which standard applied to a transgender employee? Would the transgender employee have a claim of discrimination if the employer enforced the hair length provision based on the gender it believed applied, even if the employee disagreed? Furthermore, would a non-transgender employee who had been disciplined for violating the hair length standard have a claim if transgender employees were allowed to choose which standard applied to them? Could a court find the mere existence of different gendered standards contributed to a pattern and practice of discrimination or a hostile work environment, even if rarely enforced?

All of these questions remain unanswered, since a court has yet to hear such claims. Given the evolving understanding that Title VII protects transgender employees, coupled with the increased presence of openly transgender employees in the workplace, it is inevitable that an employer with a gendered dress code will soon be facing one of these claims, or one similar.

Gender Stereotypes

Indeed, even if an employer believes it has no transgender employees, many of the cases that have led to the protection of transgender employees under Title VII were brought by individuals who did not identify as transgender, but simply defied stereotypical gender expectations. Ann Hopkins, the employee at the heart of the Supreme Court case that first articulated the “sex stereotyping” theory of Title VII protection, for example, did not identify as transgender, but her supervisors commented that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse, 490 U.S. at 235.

To avoid being the named defendant in the case that reconciles these two tracks of jurisprudence, the safer course for an employer is to draft a dress code or grooming standard that is equally applied to all employees, regardless of their gender expression. It is reasonable for an employer to require that employees dress “professionally” and to give specific examples of what professional dress means in the setting of that workforce, such as suits, no jeans, or other examples that are not different for either gender. It is also reasonable for an employer to expect that employees keep their hair “neat and clean” or even place restrictions on overly ostentatious hair colors. Cf. Burchette v. Abercrombie & Fitch Stores, Inc., 2010 WL 1948322, at *(S.D.N.Y. May 10, 2010) (upholding a grooming standard that instructed both male and female employees to wear their hair in a “clean, natural, classic hairstyle” in a race discrimination claim brought by an employee with dyed hair).

These policies should be linked to a legitimate business needs. For example, restrictions on certain hair styles are more likely to be upheld if there is a connection between the restriction and the employees' duties, such as for safety reasons. Additionally, the dress code should be tailored for different positions if necessary. An employer can demonstrate more readily a business need for a customer-facing employee to adhere to certain dress standards than for an employee who is in an office and not acting as the face of the company.

Conclusion

Again, as long as these dress codes are gender neutral, both on their face and in their application, they are likely to withstand challenges under federal anti-discrimination law. While these policies should be reviewed with a different eye to ensure that a claim of religious discrimination does not follow ' by an employee who wears a religious headdress, for example ' gender-neutral policies that are linked to legitimate business needs will protect employers from become the test case for two lines of jurisprudence that will, at some point, need to be reconciled.

Jen L. Cornell is an attorney with Nilan Johnson Lewis in Minneapolis. She can be reached at [email protected] or 612-305-7717.

While employers always need to keep in mind differing obligations under state and federal anti-discrimination statutes, the potential pitfalls for employers with regard to transgender employees are enormous. Courts have expressly held that Title VII and the Equal Protection Clause does not cover discrimination on the basis of sexual orientation. See, e.g., Simonton v. Runyon , 232 F.3d 33, 36 (2d Cir. 2000). However, most courts that have considered the question of transgender ' or gender non-conforming individuals, regardless of how they self-identify ' have held that the gender-stereotyping theory of Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), extends Title VII protections to those individuals.

The extension of Title VII protection to transgender or gender non-conforming individuals has been addressed by a number of courts, which employers should note. See, e.g., Glenn v. Brumby , 663 F.3d 1312, 1313-14 (11th Cir. 2011) (accepting a claim bought by a transgender plaintiff who was fired because her supervisor believed that her gender transition would be “inappropriate” and “disruptive” and would make fellow employees “uncomfortable”); Smith v. City of Salem , 378 F.3d 566 (6th Cir. 2004) (accepting a claim by a transgender woman who was told she was not masculine enough and was subjected to psychological testing and suspension); Schwenk v. Hartford , 204 F.3d 1187 (9th Cir. 2000) (accepting a claim under the Equal Protection Clause that a prison guard assaulted a transgender prisoner based on assumptions about gender); Rosa v. Park West Bank & Trust Co. , 214 F.3d 213 (1st Cir. 2000) (accepting a claim from a bank patron who was refused service because his gender presentation did not match his identification); Schroer v. Billington , 577 F. Supp. 2d 293, 300, 305 (D.D.C. 2008) (accepting a claim brought by a transgender plaintiff whose supervisor recoiled when shown a picture of what the employee would look like after transitioning).

Jurisprudence and Dress Codes

At odds with this line of cases is a line of jurisprudence holding that Title VII does not prohibit gendered dress or grooming codes. In these cases, courts have typically held that as long as the burden of the dress codes is equal for both men and women, the dress code does not violate Title VII. See, e.g., Jespersen v. Harrah's Operating Co., Inc. , 444 F.3d 1104, 1109-10 (9th Cir. 2006); Knott v. Mo. Pac. Ry. Co. , 527 F.2d 1249 (8th Cir. 1975); Willingham v. Macon Tel. Pub. Co. , 507 F.2d 1084, 1088 (5th Cir. 1975). As a result, employers may have been advised that they can maintain gendered dress codes, or grooming standards, without fear of violating federal anti-discrimination laws.

While the case has not yet been heard, the growing consensus that federal anti-discrimination laws protect transgender employees is on a collision course with jurisprudence permitting gendered dress codes. Take, for example, an employer with different standards for men and women regarding hair length. How would the employer determine which standard applied to a transgender employee? Would the transgender employee have a claim of discrimination if the employer enforced the hair length provision based on the gender it believed applied, even if the employee disagreed? Furthermore, would a non-transgender employee who had been disciplined for violating the hair length standard have a claim if transgender employees were allowed to choose which standard applied to them? Could a court find the mere existence of different gendered standards contributed to a pattern and practice of discrimination or a hostile work environment, even if rarely enforced?

All of these questions remain unanswered, since a court has yet to hear such claims. Given the evolving understanding that Title VII protects transgender employees, coupled with the increased presence of openly transgender employees in the workplace, it is inevitable that an employer with a gendered dress code will soon be facing one of these claims, or one similar.

Gender Stereotypes

Indeed, even if an employer believes it has no transgender employees, many of the cases that have led to the protection of transgender employees under Title VII were brought by individuals who did not identify as transgender, but simply defied stereotypical gender expectations. Ann Hopkins, the employee at the heart of the Supreme Court case that first articulated the “sex stereotyping” theory of Title VII protection, for example, did not identify as transgender, but her supervisors commented that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse, 490 U.S. at 235.

To avoid being the named defendant in the case that reconciles these two tracks of jurisprudence, the safer course for an employer is to draft a dress code or grooming standard that is equally applied to all employees, regardless of their gender expression. It is reasonable for an employer to require that employees dress “professionally” and to give specific examples of what professional dress means in the setting of that workforce, such as suits, no jeans, or other examples that are not different for either gender. It is also reasonable for an employer to expect that employees keep their hair “neat and clean” or even place restrictions on overly ostentatious hair colors. Cf. Burchette v. Abercrombie & Fitch Stores, Inc., 2010 WL 1948322, at *(S.D.N.Y. May 10, 2010) (upholding a grooming standard that instructed both male and female employees to wear their hair in a “clean, natural, classic hairstyle” in a race discrimination claim brought by an employee with dyed hair).

These policies should be linked to a legitimate business needs. For example, restrictions on certain hair styles are more likely to be upheld if there is a connection between the restriction and the employees' duties, such as for safety reasons. Additionally, the dress code should be tailored for different positions if necessary. An employer can demonstrate more readily a business need for a customer-facing employee to adhere to certain dress standards than for an employee who is in an office and not acting as the face of the company.

Conclusion

Again, as long as these dress codes are gender neutral, both on their face and in their application, they are likely to withstand challenges under federal anti-discrimination law. While these policies should be reviewed with a different eye to ensure that a claim of religious discrimination does not follow ' by an employee who wears a religious headdress, for example ' gender-neutral policies that are linked to legitimate business needs will protect employers from become the test case for two lines of jurisprudence that will, at some point, need to be reconciled.

Jen L. Cornell is an attorney with Nilan Johnson Lewis in Minneapolis. She can be reached at [email protected] or 612-305-7717.