The Importance of Keeping Abreast of the Law of Workplace Dress Codes

by Greenberg Glusker Fields Claman & Machtinger LLP

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Odes worked for her employer, Native Intimates, for the grand total of a week.  During that time, she claims that she was not only asked to wear less provocative clothing, but that she was advised by her supervisor to tape down her chest and was forced to wear an ugly robe to cover up a revealing outfit before she was ultimately terminated when she left work to buy a baggy outfit.

Here is a photograph of Odes at her press-conference, holding a picture of herself in the robe she was allegedly shamed into wearing (and presumably attempting to demonstrate the hotness for which she was allegedly terminated):

Like Right Said Fred, she may just be too sexy for that job.

(With Odes is celebrattorney Gloria Allred, who appears to have a batphone that rings any time a case like this arises.)

Odes, who also claims that she is being unfairly held to her employer’s Orthodox religious standards regarding dress, has filed claims for gender and religious discrimination under federal law.  Many find Odes’ case to be laughable.  But does Odes have a legitimate claim to get off her chest?

Discrimination in employment terms and conditions, including but not limited to dress codes, is prohibited under the law.  (In fact, under recent changes in California law, California employers are not only barred from having dress codes that discriminate against gender, but also any policies that discriminate based on gender expression or gender identity.)  But employees who bring claims based on discriminatory dress codes have a tough showing to make:  they must not only show that they are being discriminated on the basis of sex, but also that the dress standards significantly burdened their ability to work.  Naturally, the law provides little guidance as to what constitutes a “significant burden,” and the decisions of federal courts don’t offer any obvious, easy-to-follow rules.  Prohibitions on facial hair, earrings, or long hair for men?  Not significantly burdensome.  Requests for women to dress provocatively or to cover up with a smock?  Significantly burdensome.  Obviously.

Based on the existing cases, Odes may have a claim of gender discrimination or harassment if she is able to establish that she was treated in a discriminatory manner — i.e., that she wore the same kinds of clothing worn by male employees (such as a fitted crew-neck t-shirt) but was singled out only because of the size of her chest.  If Odes can prove her claim that she was asked to tape down her chest, this may further support her claim that she was singled out based on her anatomy rather than her attire.  Moreover, in light of prior decisions finding that women who were required to wear smocks or costumes were “burdened” in their work, Odes has at least a colorable claim that she was similarly burdened by her hotness-concealing “robe of shame.”  Of course, depending on just how much of that hotness was on display under the robe, her ex-bosses may be able to argue that they had no choice but to require Odes to cover up.  As is often the case in discrimination suits, the inquiry is fact-intensive.  But we can say this much:  the robe’s hideous orange color, while tragic, is not, itself, illegal.  (Even if maybe it should be.)

Odes’ religious discrimination claim, on the other hand, seems to be far more of a stretch.  Religious discrimination cases based on dress and grooming policies generally arise from rules that prevent employees from wearing religious garb, or require them to shave their beards or engage in other grooming practices that violate their religious beliefs.  Here, Odes doesn’t appear to be claiming that she belongs to some kind of Church of Sexiness which requires her to dress provocatively — much to the disappointment, I’m sure, of skeptical men everywhere who thought that had finally found something to believe in.  Instead, Odes (who is also Jewish) seems to be arguing that, in being forced to dress more conservatively, she is being forced to share the religious views of her employers.  This is a far more novel (and unlikely) case to make, particularly in light of the fact that many heathen employers, with no religious affiliation of any kind, also see fit to limit provocative dress in order to maintain a professional working environment (and, of course, limit sexual harassment claims).

In any event, Odes’ lawsuit has raised some eyebrows, and some interesting questions.  She can only hope her lawyer will stick around long enough to learn the answers.

In the meantime, employers should take some comfort in knowing that workplace dress codes are still legal — as long as they do not discriminate on a basis prohibited by law and do not significantly burden the affected employees.  The best way for employers to protect themselves is by circulating written policies which are tailored to the needs of their business (such as maintaining office decorum and limiting the risk of sexual harassment claims), and — of particular interest to the owners of Native Intimates — shield them from liability by putting employees on notice of what’s required of them and offering evidence of the employer’s consistent application of a neutral, non-discriminatory policy.  Policies which prohibit employees from wearing jeans, open-toed shoes, athletic clothing or tennis shoes, clothes with holes or stains, and/or clothes that reveal bras, underwear or belly buttons are all totally legal (if somewhat un-fun).

Notably, Odes has intimated that her employer never gave her a written dress code and that she was left to guess what was appropriate.  Had Native Intimates given Odes (and its other employees) a clear dress code policy, perhaps it could have avoided the circumstances leading to Odes’ termination and the resulting litigation.

Instead, Native Intimates may now be facing greater exposure than Odes’ décolletage.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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