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Lessons from Equal Opportunity Harasser Doctrine: Challenging Sex-Specific Appearance and Dress Codes

Employers seeking to enhance their corporate brand or to foster a professional business environment frequently mandate that employees adhere to personal appearance requirements while at work. These requirements often regulate everything from dress and grooming habits to personal hygiene. Though appearance codes are generally based on stereotypical assumptions about how men and women are supposed to look and act, courts tend to acknowledge their validity out of deference to employers' business judgment. Although many courts treat employer-mandated appearance codes as "legally insignificant" and have long tolerated them, the weight of literature and theory on the subject, as well as the intensity and frequency with which employees challenge them through litigation, indicate that seemingly trivial dress codes can actually have important implications for autonomy and gender equality in the workplace. Far from trivial to some people, dress codes present the dual problem of preventing some employees from expressing their core sense of gender identity, while simultaneously reinforcing hidden prejudices embedded in social norms. Under the widely-adopted "unequal burdens" test from Frank v. United Airlines, a policy that has different grooming and appearance requirements for men and women is permissible, as long as it imposes equal burdens on males and females and does not limit the employment opportunities of only one sex. Under this test, if a dress code is equally offensive to men and women, it will still be permissible since it does not discriminate against only one sex. Sex-specific appearance codes requiring, for example, men to wear ties and women to wear skirts, both disadvantage individuals who diverge from prescribed, gender-based stereotypes of appropriate appearance and affirm gendered distinctions that devalue women, feminized men, and sexual minorities. Nonetheless, under Frank's unequal burden test, if such dress codes are applied evenly to men and women, they are generally upheld. Using principles from the equal opportunity harasser doctrine under sexual harassment law as a model for the development of dress code law, I argue that in some cases, even dress codes that equally burden men and women may constitute either gender identity or gender expression discrimination - or both - and thereby violate Title VII of the Civil Rights Act.