I recently read an article about a claim by an employee who, in effect, alleged that she was harassed and fired for dressing too provocatively. The gist of the employee’s claim was that she was prohibited from wearing certain forms of clothing which allegedly drew the attention of male co-workers to her. The company maintained a dress code prohibiting employees from dressing provocatively, but ultimately claims the employee was terminated for performance reasons.
This is a very interesting, yet novel case. The employee’s theories of recovery are unclear. This article, however, will focus on two claims which immediately come to mind – sex/gender discrimination and sexual harassment. Even assuming the company admitted to firing this employee due to her appearance, however, this does not necessarily mean that the company would be liable.
Under a theory of sex/gender discrimination, the employee would be unlikely to prevail. As a general rule employers are completely within their right to implement, administer and enforce dress codes. Indeed, employers are even permitted to distinguish between what men and women can wear so long as both men and women are subject to restrictions that are reasonably related to the employer’s business needs. So, for example, courts have upheld policies restricting hair length for men, but not for women. To the extent the employer was requiring the employee to dress in a manner consistent with its dress code, and to the extent that the dress code passed muster under the anti-discrimination laws, the employee’s claim could prove to be unfounded, even if men were subjected to different requirements.
Under a theory of sexual harassment, however, the employee raises an interesting claim despite its unconventional posture. In order to prevail on claims of sexual harassment, an employee must demonstrate severe and pervasive conduct of a sexual nature, which is based upon the employee’s gender, and which makes the workplace utterly intolerable as a result, thereby creating a hostile work environment. If the employee in the above-noted matter can demonstrate that she dressed in a manner consistent with the company’s dress code, and can further demonstrate severe and pervasive comments about her appearance which are linked to her gender, the employee could possibly fit herself into the technical definition of hostile work environment sexual harassment.
While the above-noted case is highly unusual, and may be difficult to prove, it may be enough to compel employers to revisit their dress codes to ensure proper business attire, which takes the “too sexy” issue into consideration. It further reinforces the well worn advice that if performance is the primary issue, such performance issues should be addressed with the employee and properly documented in a timely manner. It also serves to demonstrate the importance of a properly worded employee handbook, which an employer could use as an effective tool to defend itself as long as it acts in compliance with the handbook. A regular review of an employer’s handbook to ensure compliance with existing law is accordingly important to an employer’s operation.
Jeffrey M. Goodz is an employment lawyer with the employment law firm of Remer & Georges-Pierre, PLLC located at Biscayne Centre, 11900 Biscayne Boulevard, Suite 288, North Miami, Florida 33181, (305) 416-5000.