Dress Codes after Bostock
The U.S. Supreme Court’s recent ruling in Bostock v. Clayton County protects workers from discrimination based on sexual orientation and gender identity. The Bostock decision is an amazing breakthrough and step forward for human rights, but it created a new unique problem for businesses: many dress codes previously thought of as innocuous could now put a business at risk for discrimination claims.
Historically, case law and the Equal Employment Opportunity Commission (EEOC) have allowed for businesses to implement dress codes on the sexes as long as enforcement was not arbitrary and that the burden of the dress code was equally felt by both sexes. In a 1970 decision, Waterhouse v. Hopkins, the Supreme Court determined that sex-based stereotypes, or what is considered sufficiently masculine or feminine, constituted sex-based discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). From Waterhouse came a smattering of State and Local laws expanding the definition of sex-based discrimination. Moreover, the EEOC continued to expand upon what was protected, ultimately leading to R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (Homes Inc.), which was decided alongside Bostock.
While the Supreme Court did not touch on the issue of gender-based dress codes in Bostock and Homes Inc., the underlying opinion of these cases is that Title VII forbids workplace discrimination based on a person’s sexual and gender identity. Further, in Homes Inc., the Court expanded upon Waterhouse by siding with an individual whose clothing did not conform to sex-based stereotypes.
Subsequently, employers going forward will be forced to reexamine sex-specific requirements for dress codes. Currently, an employee handbook policy will typically fall along these lines:
- Men are required to wear blue, black, or dark grey suits with ties, and women if wearing a skirt or dress must have the garment go past their knees.
Previously, this dress code seemed reasonable and was sanctioned by both the courts and federal agencies. However, Bostock and its brethren are changing our perceptions of these seemingly harmless policies. The above policy is inherently biased against people transitioning between sexes and those who identify as non-binary or gender nonconforming. The quickest and simplest solution is to try and eliminate those sex-specific words and instead use more sex-neutral terms. Here is the previous policy with just a few changes:
- Suits must be blue, black, or dark grey and worn with a tie, and if wearing a skirt or dress, then it must go past your knees.
The change is simple, yet there is no implication of categorizing any person with regards to their sexual orientation or gender identity.
The most sensible advice in a post-Bostock world is to be respectful of your employees’ right to dress in any manner as long as they conform to professional standards applied uniformly across your entire workforce.