Dress Codes, Uniforms, and Grooming Standards
Sex stereotypes are widely held expectations about how someone of a particular gender does or should act or communicate. They include expectations related to dress and grooming. Under the New York City Human Rights Law, employers may not require workers to conform to stereotypical ideas about masculinity or femininity when imposing dress codes, uniforms, or grooming standards on their employees. At Phillips & Associates, our New York City transgender discrimination attorneys may be able to help employees who have encountered discrimination based on these aspects of gender expression bring a lawsuit for injunctive relief and damages.Dress Codes, Uniforms, and Grooming Standards
Employers are allowed to institute dress codes, grooming standards, and uniforms, but they must be neutral rather than specific to gender. Discrimination might occur, for example, if an employer institutes and then enforces a policy in which men may not wear nail polish or make up at work. It might also occur when a transgender employee is not promoted because they do not groom themselves in the way that the employer believes someone of their assigned sex should groom.
One form of discrimination is harassment. An employer may be sued for permitting a gender nonconforming employee who does not conform to the dress code applicable to their assigned sex to be harassed for it by their supervisor. Harassment based on gender expression is often hostile work environment harassment. That is, it is harassing comments or conduct that are so severe or so pervasive that they create a workplace that a reasonable person would find offensive or hostile. For example, a manager commenting about a transgender man's breasts or repeatedly calling a transgender woman "gay" as an epithet because she wears nail polish is likely to be considered actionable harassment.Differences Between Federal and New York City Laws
Title VII provides protection to employees related to their gender expression. However, the protection is significantly less than what is provided under the New York City Human Rights Law. For example, a federal court has found that an employer grooming code requiring different hair lengths for men and women was negligibly related to the purpose of Title VII, and thus it was acceptable. In contrast, under the New York City Human Rights Law, any requirement of a dress code, uniform, grooming, or appearance that imposes different requirements based on sex or gender is not permitted. Simply having a code based on gender is discriminatory even if the employer believes that it is innocuous. The employee does not need to show why the requirement makes them uncomfortable.
An employer may not defend on the ground that it is simply conforming to its customers' or clients' preferences. Violations may be avoided, however, by creating a gender-neutral dress code, such as requiring all employees to pull their hair back from their face or providing two options for a uniform in which one is more typical of women's shirts and the other is close to traditional men's shirts. The employer may not require an employee to wear one style rather than the other, however.Remedies
Compensatory damages may be recovered if you are treated differently based on your gender under your employer's policies related to dress codes, grooming, or uniforms. You may be able to recover damages for your emotional distress, as well as any back pay or front pay that you miss due to being disciplined or terminated for failing to conform to discriminatory standards. In egregious cases, your employer may be required to pay punitive or exemplary damages, which are awarded to punish the employer, rather than compensate the employee.Consult a Transgender Discrimination Attorney in New York City
Gender expression discrimination may be painful. An employer is not permitted to discriminate when instituting or enforcing dress codes, uniforms, and grooming standards. At Phillips & Associates, our New York City attorneys can advise plaintiffs on filing internal complaints of gender expression discrimination, and we can bring a charge or lawsuit afterward if appropriate. Contact us online or call us at (212) 248-7431 for a free consultation with a gender expression discrimination lawyer. We fight employment discrimination in the Bronx, Queens, Brooklyn, Manhattan, and Staten Island, as well as in Nassau, Suffolk, and Westchester Counties and in New Jersey.
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