Introduction

With employees returning to the office from home, appearance and dress code policies have once again taken the spotlight. Some employees may be more accustomed to casual dress or seek to express themselves with a different appearance than they did prior to the pandemic. While employers may institute policies for appearances and dress codes generally, it is important to be mindful of potential areas where discrimination claims may arise. This blog article will cover new, upcoming, and anticipated changes in discrimination laws regarding hair care, dress codes, and sex stereotyping policies.

Hair Care & Appearance Policies

Unfortunately, hair discrimination is not new. Minorities, especially African American women, have been sent home from work for their hair appearance. Even where employees are not sent home, they often feel pressured to style their hair to align with more conversative appearance standards. This often involves costly hair care treatments, chemical applications, or high-heat styling products. Additionally, changing one’s hair appearance regularly can result in hair breakage, poor hair quality, and lots of time and resources.

But recently, both legally and culturally, there has been a movement for natural hair styles. In 2020 Congress introduced the Create a Respectful and Open World for Natural Hair (“CROWN”) Act which would prohibit hair discrimination based on natural hair styles. While Congress has not adopted the CROWN Act, individual states have taken upon themselves to enact their own CROWN Acts. So far three states have officially outlawed hair discrimination and twenty-two additional states have introduced their own version of the CROWN Act, including Ohio.

Given these trends, employers should approach hair care and appearance policies with caution. We recommend that employers revise their grooming and appearance policies to be racially neutral. This would include language which does not prohibit natural styles such as afros, braids, bantu knots, and locs. Further, employers should ensure that hair appearance standards are consistently enforced. For instance, if white employees are permitted to wear hair extensions, non-white employees should similarly be able to wear hair weaves and other forms of extensions.

Sex Stereotyping

In the case of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the United States Supreme Court recognized that the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 includes sexual orientation. Therefore, employers cannot discriminate against employees based on sexual orientation in terms of hiring, wages, or other terms and conditions of employment. Following the Supreme Court’s decision in Bostock, employers should reexamine their sex-specific requirements for dress codes to prevent sex and gender-based discrimination claims. Specifically, employers cannot require a transgender employee to dress in accordance with the employee’s sex assigned at birth. Any act or policy prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination. This means an employer cannot require a female employee to act or appear more feminine, nor can they require a male employee to act or appear more masculine. In addition, employment decisions cannot be based on an individual’s failure to adhere to “gender norms”.

Further, the EEOC has stated that employers cannot use explicit or perceived customer preferences as a reason to discriminate or sex stereotype an employee. Employers cannot exclude employees from public facing positions simply based off sex stereotyping perceptions. Thus, employers should ensure their dress code and appearance policies do not perpetuate sex-based stereotypes.

Dress Codes

Dress code policies are another area where employers should be cautious about creating disparities between men and women. While federal courts have permitted dress code policies which apply differently to each gender, such policies cannot place a significantly higher burden on one gender over the other. Common disparities between men and women include policies where women may wear open-toed sandals while men may not, policies permitting women to wear skirts while similarly prohibiting men, or permitting women to have body jewelry while prohibiting the same for men.

Moving forward, employers should evaluate their dress code policies and assess whether any disparities are present. If there are disparities, consider whether a dress code that distinguishes between men and women is necessary or whether it creates a higher burden for one gender over another.

Fishel Downey regularly provides discrimination training and policy review for employers and, when necessary, represents employers in discrimination lawsuits.  Contact us at info@fisheldowney.com for more information about the training we offer.