There is an inherent tension in the acceptance of grooming codes as legal and permissible and the view that sexual stereotypes are impermissible discrimination. The courts do not apply the sexual stereotype analysis to grooming codes and appearance policies mainly because of the protection of the employers’ right to run their business the way they choose to, obviously within the confines of Title VII and impermissible employment discrimination. Another important reason for the court’s inclination not to apply the sexual stereotype analysis to grooming codes is the differentiation between immutable characteristics and voluntary and personal choices of appearance. Although the voluntary choices of a person’s appearance implicates his or her freedom of self expression through appearance, this right may be limited in certain circumstances where other conflicting interests are at stake.
Sexual Stereotyping is Impermissible
Like any kind of stereotype, sex stereotypes are based on perceptions and molds of what men and women should conform to based on their historical roles in society. A very common sexual stereotype seen in the workplace is that female employees, compared to male employees, should be effeminate in the way they dress, speak and present themselves.
Ann Hopkins, a female candidate for partner at Price Waterhouse Cooper, alleged in a federal lawsuit that she was subjected to exactly that kind of sexual stereotype. During the review of her candidacy for partner, in which she was the only female candidate in the pool of partner candidates at the time, Hopkins’s reviews from other partners consisted of language such as “macho” and “overcompensated for being a woman.” Hopkins was passed up for the partner position that year and was told that she “should ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” As a result of her unfeminine and aggressive demeanor, presentation, and manner, Hopkins was not promoted to partner. The Supreme Court held that taking adverse action because of the employee’s failure to conform to a sex stereotype is a form of impermissible sex-based conduct.
Grooming Codes are Permissible
Grooming codes are policies set forth by employers dictating the appearance of employees. A lawsuit against Macon Telegraph examined grooming codes that required “employees (male and female) who [come] into contact with the public to be neatly dressed and groomed in accordance with the standards customarily accepted in the business community.” Grooming standards and codes often dictate the dress of an employee (requiring women to wear skirts as opposed to pants), use of makeup, length of hair, or piercings. Employers try to confine the appearance of their employees within a certain standard they deem to be appropriate for their business culture and propriety.
Grooming codes often implicate the personal and voluntary choices an employee makes in his or her appearance and hence do not raise an issue under the prohibition of sexual stereotyping. The rights of an employer to dictate how he will run his business can be at odds with an employee’s right to self-expression through appearance only if such appearance is based on an immutable characteristic such as race, gender, or nationality. If the employee wants to keep the job, he or she may choose to comply with the employer’s grooming and appearance standards. If they choose not to, there is no actionable cause under Title VII. For this reason grooming policies, which differentiate between the appearance of male and female employees, though they may necessarily implicate sexual stereotypes of how an employee should appear, are not prohibited by Title VII. Grooming codes and cases analyzing the constitutionality and permissibility of such policies often fall into two categories: standards of personal hygiene and standards of personal attractiveness and desirability.
There are exceptions to the permissibility of grooming codes. Where a dress code or grooming standard involves an immutable characteristic of the employee, the courts modify the Title VII analysis. Dress codes which require women to dress conservatively or more feminine are permissible under the case law. However, employers are in violation of an employee’s civil right when requiring the female employee to wear provocative cloths that will result in sexual harassment or assault of the employee. Hence, dress requirements restricting an employee’s appearance in the opposite direction of socially acceptable are impermissible. Disparate application of a grooming code on one gender is also an impermissible grooming code.