Practical Questions for Employers Following the Bostock Decision, Part 2: Dress Codes and Grooming Standards

On June 15, 2020, the Supreme Court of the United States issued its decision in Bostock v. Clayton County, Georgia, holding that, pursuant to Title VII of the Civil Rights Act of 1964, as amended, covered employers may not discriminate against applicants or employees on the basis of sexual orientation or gender identity. In part one of this series, we discussed the holding’s implications for sex-segregated facilities in the employment context. This article discusses the holding’s implications for dress codes and grooming standards.

Issues regarding sex-specific dress codes and grooming standards are not new to employers, although case law and agency stances have evolved over the years. In the past, the U.S. Equal Employment Opportunity Commission (EEOC) and many courts had taken the position that sex-specific dress codes did not run afoul of Title VII’s sex discrimination prohibitions as long as the dress codes were not arbitrarily enforced and did not favor or affect one sex. In other words, sex-specific dress codes were generally permitted as long as they were equally burdensome on the sexes.

As noted in part one of this series, however, the EEOC’s position on these issues appears to have begun to change at least as early as its decision in Macy v. Holder. Moreover, in R.G. and G.R. Harris Funeral Homes v. EEOC (one case in the trilogy of cases underlying the Bostock decision), the EEOC brought suit against the employer in part due to the funeral home’s refusal to allow Aimee Stephens, an employee, to dress according to her gender identity.

Further, as with restroom usage, state and local jurisdictions may provide further directives for employers with respect to dress codes and grooming standards—many under the framework of gender expression as a protected characteristic. For example, California’s 2012 Gender Nondiscrimination Act clarified prior state law (i.e., the California’s Fair Employment and Housing Act) to state that “gender identity” and “gender expression” are their own enumerated protected categories. Further, New York’s Gender Expression Non-Discrimination Act explicitly prohibits employment discrimination on the basis of gender expression. Moreover, under New York City’s Human Rights Law, “employers and covered entities may not require dress codes or uniforms, or apply grooming or appearance standards, that impose different requirements for people based on gender.” The New York City Commission on Human Rights issued a guidance that provides the following clarifications:

[T]he fact that the grooming standard or dress code differentiates based on gender is sufficient for it to be considered discriminatory, even if perceived by some as harmless. Holding people individuals to different grooming or uniform standards based on gender serves no legitimate non-discriminatory purpose and reinforces a culture of gender sex stereotypes and accepted cultural norms based on gender expression and identity.

In addition, as Justice Alito’s dissent in Bostock acknowledges, gender identity is not strictly a binary construct; transgender individuals may be gender fluid. Moreover, more and more individuals are identifying as transgender or gender non-binary, which generally means the individuals may not have a particular gender or gender expression.

Gendered dress codes often may be premised upon outdated sex-based stereotypes, and they may make transgender and gender- non-binary employees feel excluded. Note also, depending upon their wording and implementation, dress codes and grooming standards also may create issues with respect to race-based discrimination and religious-based discrimination allegations. In addition, practically speaking, many employers find that policing sex-specific dress codes is administratively burdensome.

Therefore, employers that currently maintain sex-specific dress codes and grooming standards without a bona fide occupational qualification (BFOQ) reasonably necessary to the regular operation of their businesses may want to consider implementing gender-neutral dress codes and grooming standards. Some employers have chosen to be very succinct, telling employees simply to “dress appropriately.” Other companies prefer to spell out dress codes and grooming standards in more detail. When doing so, the key is to focus on the clothing or accessories themselves and avoid dictating gender-specific rules (e.g. changing “men may not wear earrings; women may wear one earring in each ear” to “employees may wear one earring in each ear”).

Part two of this three-part series will focus on dress codes in the wake of the Bostock decision.