If you follow the news in employment law, you may have heard about a recent finding by the the Washington State Commission on Human Rights that Alaska Airlines discriminated when it enforced a gender-based dress code for flight attendants. Although that decision is not binding here in Washington, D.C., Maryland or Virginia, employers would be wise to take notice of the Commission’s reasoning.
Over the years, many companies have tried to enforce gender-based dress codes. These policies have varied, but in the Alaska Airlines case, the policy was quite rigid. Flight attendants were told to choose the appropriate “masculine” or “feminine” uniform based on their gender. Each style of uniform came with its own rules, specifying everything from makeup and facial hair to what color shoes each gender could wear. Little deviation from the prescribed uniform was allowed.
Problems arose when people of non-binary or fluid gender identities were presented with the choice of “masculine” or “feminine” uniforms. The Complainant, a flight attendant and flight-attendant instructor based in Seattle, strongly felt the need to deviate from the uniform’s rigid binary standard. The Complainant had tried multiple times to obtain an exception to the uniform policy, but to no avail.
The Washington State Commission on Human Rights found that the dress code required the gender-fluid flight attendant “to try fitting into a binary uniform system despite identifying as neither male nor female.”
Can employers in our area have gender-based dress codes?
Although this finding was made by the Washington State Commission on Human Rights, employers in our part of the country should still be cautious about enforcing gender-based dress codes. As we mentioned in a recent blog post, the Fourth Circuit Court of Appeals recently ruled that gender dysphoria is covered by the Americans with Disabilities Act. In other words, employers can’t discriminate against people who suffer from gender dysphoria. Moreover, the U.S. Supreme Court has specifically ruled that gender identity is a protected category under Title VII. In fact, the Supreme Court and the federal circuit courts have ruled in a long series of cases that Title VII prohibits gender stereotyping.
For example, the Supreme Court ruled in 1989 that Price Waterhouse discriminated when it denied a woman a rightful promotion because, in part, the partners felt she dressed and acted in an insufficiently feminine way. That court explicitly said that Title VII’s prohibits discrimination “because of sex,” which encompasses the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”
Although the Supreme Court has not given a final answer to this question, it is not difficult to see why these policies can be problematic. Employers would therefore be wise to consult with an attorney before adopting any gender-based policies.