Spring Dress Codes: Can Employers Police Your Appearance?

The arrival of spring often brings a desire to refresh personal style, and this extends to the workplace. As employees consider lighter and different attire, questions about employer dress codes frequently arise. Generally, employers in the United States can establish dress codes and appearance standards, provided these policies serve legitimate business purposes, such as ensuring safety, maintaining a professional image, or promoting brand identity. However, this managerial prerogative is not unlimited. The changing seasons can sometimes bring underlying tensions about workplace control and individual expression to the surface. As attire preferences shift, employers might respond by re-emphasizing or tightening dress codes; this can lead employees to feel that their personal choices are being unfairly scrutinized. When appearance policies infringe upon protected rights, they can cross the line into unlawful discrimination.   
At Filippatos PLLC, our team of experienced lawyers, who practice in sexual harassment and body discrimination, are dedicated to safeguarding employee rights and fighting for fairness in the workplace. This article explores the complexities of workplace dress codes, focusing on when such policies may constitute illegal discrimination under federal, New York State, and New York City laws. 

When Appearance Policies Cross the Line: Unlawful Discrimination Under Federal and New York Law

While employers have the right to set standards, these standards must not discriminate against employees based on protected characteristics. Federal laws like Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) provide foundational protections, and states and cities like New York have enacted even more stringent safeguards.

Gendered Discrimination and Dress Codes: Beyond “Unequal Burdens”

Employers are generally allowed to have different dress standards for men and women, but these policies cannot impose an “unfair burden” on one gender over the other. For instance, requiring female employees to wear extensive makeup, specific hairstyles, or costly, gender-specific uniforms, while male colleagues have no comparable requirements, could be challenged as discriminatory if proven to be more burdensome. The case of Jespersen v. Harrah’s Operating Co., where a court found a makeup policy for women not to be an unequal burden, illustrates the evidentiary challenges employees can face under this standard, though a claim can succeed if the burden is demonstrated.   
Such gendered dress codes often do more than just differentiate; they can reinforce outdated gender norms and stereotypes about how men and women “should” appear. This is where New York City law offers significantly stronger protections. Under the New York City Human Rights Law (NYCHRL), the mere fact that a dress code or grooming standard differentiates based on gender can be sufficient for it to be considered discriminatory, even if it doesn’t impose a demonstrably “undue burden” on one sex. This is a critical distinction from federal interpretations, which often require a showing of tangible, unequal burdens—a standard that can be difficult to meet, sometimes allowing subjectively biased dress codes to persist. The rights of transgender and non-binary employees are also paramount. Dress codes must not discriminate based on gender identity or expression. Title VII of the Civil Rights Act, particularly after the Supreme Court’s decision in Bostock v. Clayton County, prohibits discrimination based on transgender status as a form of sex discrimination. New York’s Gender Expression Non-Discrimination Act (GENDA) provides even more explicit protections, prohibiting employers from requiring employees to dress according to the sex assigned at birth if it conflicts with their gender identity and barring grooming or appearance standards based on sex stereotypes. While federal law application to specific dress code scenarios continues to evolve, GENDA offers clear and robust legal recourse for employees in New York.

Racial Discrimination in Attire and Grooming: The CROWN Act and Beyond

Dress codes must not serve as a pretext for racial discrimination. Policies that prohibit hairstyles historically and culturally associated with Black individuals, such as locs, braids, twists, cornrows, and Afros, can be a form of unlawful discrimination. Recognizing this, New York is one of several states that have enacted the CROWN Act (“Creating a Respectful and Open World for Natural Hair”). This landmark legislation explicitly prohibits race-based hair discrimination in employment and education by expanding the legal definition of race to include traits historically associated with race, such as hair texture and protective hairstyles. The CROWN Act directly confronts Eurocentric standards of “professionalism” that have historically marginalized Black employees by compelling them to choose between their cultural identity or hair health and their job opportunities. The Act is a legal acknowledgment that cultural identity expressed through hair is a protected racial characteristic.

Beyond hairstyles, discrimination can also occur based on ethnic or cultural attire. Employers generally cannot prohibit such attire if other employees are permitted to wear clothing of a similar level of formality or casualness. For example, a blanket policy banning all head coverings might appear neutral on its face but could disproportionately affect employees whose religious or cultural practices (often intertwined with race or ethnicity) include wearing head coverings.

Body Image, Appearance, and Potential Discrimination: When Does It Become Illegal?

The term appearance-based discrimination refers to unfavorable treatment based on an individual’s physical appearance. While “appearance” itself is not a federally protected class, discrimination based on appearance can become illegal if it intrinsically linked to a protected characteristic such as disability, age, gender or race. For example, if an employer’s preference for a certain “look” results in the exclusion or older workers or individuals of a particular race, it could be challenged. The lack of direct federal protection for “appearance” means employees often need to demonstrate how the appearance guidance from body discrimination on a protected ground, making experienced legal guidance from body discrimination lawyers essential.

Body image harassment occurs when comments or actions related to an employee’s body type, weight, or physical features create a hostile work environment and are connected to a protected class. This could include persistent, unwelcome gendered comments about an employee’s weight or racialized remarks about their physical features.

Furthermore, body discrimination can manifest through policies imposing weight or size requirements. Such requirements may be discriminatory if they are not genuinely job-related and consistent with business necessity, if they disproportionately impact a protected group (imposing stricter weight standards for women then for men), or if an individual’s weight or body size is a symptom of, or itself constitutes, a disability under the Americans with Disabilities Act (ADA).

Religious Accommodations and Employer Obligations

Employers have a legal duty under Title VII and the ADA to provide reasonable accommodations for employee’s sincerely held religious beliefs and practices, as well as for known disabilities, unless doing so would impose an “undue hardship” is a significant threshold, meaning more than minor cost or inconvenience; it implies substantial difficulty or expense. Examples of religious accommodations related to dress codes, including permitting employees to wear religious head coverings (such as hijabs, yarmulkes, or turbans), religious garments, or to maintain facial hair (like beards). Even if these deviate from the standard dress code. The Supreme Court case EEOC versus Abercrombie and Fitch, which involved in Muslim applicant who wore a hijab, underscored an employer’s duty to accommodate religious practices.

Can Dress Codes Be Sexist or Racist? Unpacking the Reality

The direct answer is yes workplace dress codes can indeed be sexist or racist, both in their explicit terms and in their application. Sexist dress codes often manifest as policies that impose stricter, different or more expensive standards on employees of 1 gender, typically women. These can include requirements for women to wear skirts, dresses or makeup, while men have more relaxed or less costly options. Such policies not only reflect outdated stereotypes but can also constitute gender discrimination. Furthermore, dress codes mandating revealing or sexually suggestive attire for women, but not for men, can contribute to sexual harassment and a hostile work environment, as seen in cases like EEOC vs Sage Realty Corp., where a lobby attendant was required to wear a revealing uniform.

Racist dress codes frequently appear as prohibitions on hairstyles traditionally associated with Black individuals such as braids, locks, twists or afros. These are now recognized as a form of racial discrimination, explicitly addressed by the CROWN Act in states like New York. Similarly, blanket prohibitions on certain ethnic attire or grooming practices can be discriminatory if they are not justified by legitimate, nondiscriminatory business needs and disproportionately affect employees of a particular national origin or race. The argument of “professionalism” often used to justify such restrictive codes can, in reality, be available for underlying cultural biases, perpetuating Systemic discrimination because “professionalism” itself is a socially constructed concept, historically shaped by dominant cultural norms.

Protecting Your Rights: What To Do If You Face Dress Code Discrimination

If an employee believes their employer’s stress code is discriminatory or is being applied in a discriminatory manner, there are steps they can take:

• Review the Policy: If there is a written dress code, review it carefully. Note whether it is applied consistently to all employees, or if certain groups are singled out.
• Document Everything: Cheap detailed records of any incidents of discriminatory application, specific comments made who was involved, dates and any observed differences in how the policy is enforced for different employees. Documentation is crucial for building a pattern that can demonstrate discriminatory intent or application, especially. when policies are unwritten or inconsistently applied.
• Report Concerns Internally: If the employee feels comfortable and safe doing so, they can report their concerns through the employers to establish channels such as Human Resources or a supervisor.

It is critical to understand that employers are prohibited from engaging in retaliation. Retaliation means an employer cannot legally punish an employee for complaining about discrimination, filing a charge of discrimination, participating in an employment discrimination investigation or lawsuit, or otherwise imposing discriminatory practices. Importantly, retaliation is a separate, unlawful act, and an employee can have a valid retaliation claim, even if the original discrimination claim is not ultimately proven successful. Fear of retaliation is a significant reason why many employees hesitate to report discrimination; understanding these legal protections can empower individuals to come forward. If faced with a discriminatory dress code or retaliation seeking advice from experienced employment discrimination lawyers is a crucial step to understanding legal rights and options.

Seeking Justice: What Damages Can You Recover for Discrimination?

When an employee is subjected to unlawful discrimination related to dress codes, including body discrimination linked to a protected class, they may be entitled to various forms of relief if they pursue legal action by suing for discrimination. The primary goal of anti-discrimination laws is to place the victim in the position they would have been had the discrimination not occurred.

Potential remedies and damages include:

• Back Pay: Compensation for lost wages and benefits from the time of the discriminatory action up to the resolution of the case.
• Front Pay: Compensation for future lost earnings if reinstatement to the former position is not feasible or appropriate.
• Compensatory Damages: These are intended to compensate for actual losses incurred.
• Economic Damages: Out of pocket expenses, resulting from the discrimination, such as job search, costs or medical bills for treatment of emotional distress.
• Non-Economic Damages: Compensation for emotional harm suffered, such as mental anguish, pain and suffering, inconvenience or loss of enjoyment of life.
• Punitive Damages: These may be awarded in cases of intentional discrimination to punish employers who have committed particularly malicious or reckless acts of discrimination. Federal law places on combined compensatory and punitive damages based on the size of the employer. Punitive damages are generally nor available in claims against government employers.
• Liquidated Damages: In cases of intentional age discrimination or willful violations of the Equal Pay Act, victims may be entitled to liquidated damages, often an amount equal to the back pay awarded.
• Equitable Relief: This can include nonmonetary remedies such as an order for reinstatement of a job, a promotion or a requirement that the employer change its discriminatory policies and practices.

Conclusion: Dress for Success, Not Stress-Know Your Rights

While employers have the right to establish appearance standards for their workforce, these policies must be implemented fairly and without discrimination. Workplace stress codes should not be a tool to enforce outdated stereotypes or to disadvantage employees based on their gender, race, religion, national origin, disability, age or gender identity or expression. Gender discrimination, racial discrimination and appearance-based discrimination that is linked to a protected status and body image harassment are unlawful and have no place in a fair and respectful work environment.

Call Us

At Filippatos PLLC, we are committed to standing with employees. If you believe your employer’s dress code is discriminatory, if you have been unfairly targeted because of your appearance in a way that connects to a protected characteristic, or if you have faced retaliation for questioning unfair policies, it is important to understand your rights. Call us at 888-9-JOBLAW or visit filippatoslaw.com.