In 2020, Do Workplace Dress Codes Continue to Make Sense?
Another moment of reckoning in 2020 makes us question whether dress codes can continue to exist in the workplace as part of a renewed commitment to equality in all forms.
The highest court in the United States decided last month that gay and transgender people are included in the country’s workplace discrimination laws. While it might be surprising to find out that these protections weren’t already guaranteed on a national level, up until June, LGBTQ+ people living in more than half of the US could legally marry under US law in the morning, and be fired that afternoon, making this a landmark decision for LGBTQ+ Americans.
But is it enough?
Recently, it’s been discussed at length whether fashion should be more actively engaged in corporate social responsibility, and we’ve seen brands condemned by the public for racism, performative activism and an overall lack of inclusivity in fashion and media. One of the central accusations was Diet Prada’s takedown of Zimmermann, which called out the Australian label on an international stage for its racially insensitive grooming standards. Parallels can be drawn between this example of discriminatory conduct and the Supreme Court decision, which also questioned the legitimacy of applying a gendered dress code to a transgender employee in the workplace.
So what’s the point of having discrimination protections, where they can be undermined in practice by the continued existence of dress codes that disadvantage particular groups? And if it takes a Supreme Court decision or a very public Instagram shaming to evade an internal workplace policy, shouldn’t we just be done with these altogether? In 2020, when most of us are working at home in our pyjamas, can we not be trusted to wear what we want to work and still get the job done?
The ruling
The crux of the Supreme Court’s decision was in confirming that Title VII of the Civil Rights Act of 1964 — which protects against workplace discriminations in all forms — included sexual orientation, gender identity and transgender status in its prohibition of discrimination on the basis of sex.
The outcome reached by the Court was the unexpected one, given the current conservative bench, which has been stacked with two additional Trump-appointed, right-wing justices since 2017. In order for the liberal-leaning justices to gain the majority in this case, the Court’s four more progressive justices needed to swing one of the conservatives in their direction. They ended up with two.
This case doesn’t uniquely impact the fashion industry (in that it applies to all organizations) and is much broader than a decision about the legality of gendered or prejudicial dress codes. But for one of the major parties to the case, this was a big part of the issue. Of the three plaintiffs represented by the American Civil Liberties Union, it’s Aimee Stephens whose situation is most analogous to questions of fashion and dress.
Stephens, a Michigan funeral home worker, was fired in 2013 after she came out to her co-workers as a woman and explained that she would be abiding by the organization’s dress code for female employees going forward, which mandated that women must wear a conservative dress or skirt. Her dismissal set out that she was being fired because she was ‘no longer going to represent himself as a man’ (the letter refused to use Stephens’ chosen pronouns and offered her severance in exchange for her silence on the matter), effectively stating that the technical reason for her termination was the failure to comply with rules as to appearance and dress.
In light of the Court’s decision, Stephens could no longer have been fired on this basis, but the dress code could still have legally existed, and Stephens would have had to comply with it unless she mounted a legal challenge on the basis of discrimination. The ruling in her favor is a step in the right direction — but not a complete solution — as it made the firing unlawful, but didn’t make the dress code itself strictly illegal.
The movement towards change
The symbolism for the fashion industry lies in the timing of this significant ruling, against a backdrop of both Pride Month and the Black Lives Matter movements happening across the world in recent weeks. In addition to protesting against racism and police brutality, many protestors have taken on the ancillary issue of transgender rights, calling for the protection of Black transgender people.
The surprising shift of a traditionalist court towards this historic ruling reflects the same momentous change being felt in the streets, and for fashion — online — as consumers continue to show that they are no longer willing to support brands and media organizations that aren’t doing enough in terms of equality. In the last few weeks this has become more of a demand than a preference, with would-be customers demonstrating that they won’t tolerate the subtle prejudices pervading the industry.
Criticism of some brands, including Zimmermann, has included being called out for grooming guidelines that place an unreasonable burden on some groups over others. The thrust of the complaint is that the now-defunct hairstyling policies made it virtually impossible for Black women to come to work wearing their hair naturally, whilst also being in compliance with the dress code. Such guidelines, though they vary in content, are common among fashion brands and companies generally.
For fashion — an industry meant to be at the forefront of social and humanitarian trends — an opportunity to pave the way forward could come out of previous race- and gender-related mistakes and discriminations. Abolishing dress and presentation codes entirely could lead the way for other sectors to do the same, and would bring fashion leadership more closely in line with the view of a large part of its consuming public, that the industry needs to be more active in promoting inclusivity and equality across the board.
So what are the options?
One of the few jurisdictions that has already entirely abolished gender-based dress codes is the state of New York, which sees no legitimate reason to set guidelines for dress based on sex. The main difference between the New York regulations and the position in many other places is that this law completely bans a dress code from having different requirements for different genders, rather than allowing for differences but only where they don’t place an unequal burden on any gender or group vs others.
In the same way that gendered dress codes might present unequal difficulties to LGBTQ+ individuals, the same would apply to inequitable guidelines that make it impossible for particular groups to wear their hair naturally at work, and begs the question whether an employer ever has a place in regulating dress in a way that undermines everyone’s subtle differences and preferences, even where this seems harmless. How can fashion re-examine inclusion and diversity in its culture, while continuing to regulate how employees express their differences?
Of course if this unfair burden does exist, a dress code won’t stand up to a claim that it breaches discrimination laws. But to achieve this, an employee would need to actively exercise their right to dress a certain way by making a discrimination claim. Apart from the stress involved in doing so, and the potential appearance of ‘making a fuss’ in the workplace, this would also be a logistical hassle, and a lot of time and money spent just to exercise what is already a legal right to be protected against discrimination.
In the Western world, changes to cultural practices about clothing have often corresponded with an increase in legal protections for a specific group, with the lifting of hemlines, removal of corsets and even bra burning correlating directly with the expansion of women’s rights. The time is now to make the similarly overdue accommodations to racial and gendered groups, and the simplest way to do that is to abandon workplace dress codes entirely. Beyond being told to comply with a vague level of formality (ie ‘business attire’ vs ‘smart casual’), singling out different groups for separate treatment doesn’t continue to make sense.
This might seem like a fickle debate, but aren’t dress and grooming codes just another form of the insidious microaggressions of which fashion is trying to rid itself?
It’s not enough that it’s now legal for Stephens to be a transgender employee, it should also be easy for her to be one in practice on a daily basis, without a dress code standing as an impediment in her way.
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