By Jennifer Williams-Alvarez, From Corporate Counsel
Can dress codes require women to wear heels to work? Some U.K. employers seem to think so judging by a recent report that went viral about a London receptionist who was sent home after she refused to trade her flats for heels. But attorneys who specialize in employment law say it’d be hard for an employer to justify such a policy in the U.S.
As the Guardian reported here, last December, 27-year-old Nicola Thorp was scheduled to work as a temporary receptionist at PricewaterhouseCoopers’ London office. Portico, the agency Thorp was working for, insisted that she change out of her flats and into 2- to 4-inch heels in order to comply with the agency’s “female grooming policy” at the time. When Thorp refused, she was sent home without pay. So last Tuesday she started a “make it illegal for a company to require women to wear high heels at work” petition.
It has nearly 140,000 signatures and states that “It’s still legal in the UK for a company to require female members of staff to wear high heels at work against their will.” (It’s worth noting that U.K. lawyers say it’s not that straightforward. There’s no dress code law to amend, as Throp implies, but rather a body of case law judges draw on to decide whether a dress code discriminates against women, as Claire Zillman of Fortune reported here.)
One thing is clear: such a dress code likely wouldn’t pass muster in the U.S., where state and federal laws prohibit employers from discriminating on such things as race, religion or sex. Christina Stoneburner, a partner at Fox Rothschild, says companies in the U.S. start getting into trouble with these laws when certain classes of people are treated differently than others. “Rather than breaking out that women can wear X and men can wear Y,” she says, “you’re better off more neutrally crafting the policy.”
There’s a very limited set of circumstances where employers could successfully argue that women have to get glammed up for work, Stoneburner says. She points to a 2013 case involving the Borgata Hotel Casino & Spa’s grooming policy for servers known as “Borgata Babes,” which prohibited them from gaining too much weight and required sexy uniforms (for women, a skirt and bustier top designed by Zac Posen).
In ruling that the policy did not violate the anti-discrimination law in New Jersey, a state court judge noted that these women knew that looking attractive was part of the job and that there would be a specific type of uniform. What’s more, nothing showed that the policies were not gender neutral, the judge reasoned, pointing out that there were also male “Borgata Babes” who had to abide by a grooming policy of their own.
On appeal, the only claims not affirmed were those brought by plaintiffs who had a medical condition or post-pregnancy condition that meant they couldn’t comply with the grooming policies.
But this case applies to a certain type of job in which employees knew there was a certain look required. In a typical professional setting, an employer would have a hard time requiring something like heels, says Lenny Feigel, an attorney at Foley & Lardner. “In the U.S., I just don’t ever see that policy being legal from the standpoint of a receptionist,” he says.
So a dress code that requires women to wear heels leaves an employer on unsteady ground. What, then, can an employer do without having to worry about legal issues? Requiring both men and women to dress professionally, requiring clean clothing, prohibiting offensive logos, these are things that Stoneburner says are typically enforced by an employer without a problem. She adds that companies should be flexible in the application of dress code policies.
“Companies can have a dress code,” Stoneburner says, “but don’t be married to it.”
IMAGE: Martinan / iStock

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