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Dress Codes Central in Supreme Court Gender Identity Bias Debate

Sept. 24, 2019, 10:41 AM

For the six years Aimee Stephens worked at a Michigan funeral home, she presented as a man and dutifully wore a suit and tie to work every day, as required by the company dress code.

When she decided to live in a way that aligned with her identity, she informed her boss she planned to ditch the suit and tie for a skirt and jacket, required for female workers. Soon after, before she could put her plan into action, she was fired.

The U.S. Equal Employment Opportunity Commission sued R.G. & G.R. Harris Funeral Homes on behalf of Stephens, arguing her former employer fired her because she is transgender, violating federal civil rights laws. The funeral home and its owner Thomas Rost, however have since argued that “maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”

This dispute will play out before the U.S. Supreme Court on Oct. 8, where the justices will grapple with a broader question of whether gender identity should be protected under Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, national origin, and religion. The divisive issue has been drawn into the national spotlight, and pits two federal agencies against each other.

The funeral home’s dress code argument, backed by the Justice Department, reveals a practical clash in the workplace that could be resolved when the high court issues its opinion. Whether these policies are permitted under Title VII already falls in a legal gray area, and has prompted challenges for decades and inspired some state action recently, specifically over hair or grooming policies.

But for transgender workers, in particular, policies that deny them the right to live by their identities, including what they wear, what pronouns are used to address them, and where they use the restroom, are already used in discriminatory ways, employment attorneys and advocates say.

“Transgender workers are facing discrimination because they aren’t presenting in the way that an employer expects a person to present based on their gender,” said Emily Martin, vice president for education and workplace justice at the National Women’s Law Center. “The question before the Supreme Court confronts a bigger problem than whether someone has to conform to a dress code.”

Dress Codes Common

Workers who are transgender or transitioning in the workplace face discrimination in all phases of employment, according to the Transgender Law Center, which filed a brief supporting Stephens to the high court. The center’s brief highlights experiences of workers who were fired or not hired because of their gender identity. Several stories detail employers expecting workers to dress in a way that fits the sex they were assigned at birth.

“Transgender employees frequently face discipline for failing to conform to gendered uniform polices for simply dressing and presenting in accordance with their true gender,” said Dale Melchert, staff attorney with Transgender Law Center. He said transgender workers are often treated differently than cisgender female coworkers, or those who adopt the identity they were assigned at birth, and that can lead to adverse employment actions. “It is because of policies like these and lack of cultural competency, as well as prejudice by employers, that transgender and gender nonconforming people face such high rates of unemployment and poverty.”

Workplace policies that enforce dress codes are common, particularly for customer-facing industries or those that have safety concerns. Employers can avoid potential Title VII liability by proving they have a business need or justification for the sex-based dress code or appearance policy.

The EEOC, which sued on behalf of Stephens, has argued that employers with different dress codes for men and women must allow workers to choose the style of dress that conforms to the gender they identify with.

“As a baseline, employers do get to weigh in on what their workers wear, whether it’s requiring professional attire or branding, or a safety issue. It’s OK to have policies concerning uniforms, dress and appearance in the workplace,” said Cheryl Sabnis, partner at King & Spalding in California. “Where employers get in trouble is when their policies ask employees to conform to gender norms.”

Beyond raising questions about sex stereotyping and gender discrimination, such policies are particularly tricky to navigate when employees desire to dress consistent with their gender identity rather than an employer’s perception of their gender, Sabnis said. Employers need to take care to ensure there is a neutral application of their policies.

Companies are increasingly moving toward being more inclusive toward transgender workers. In 2010, only 9% of companies surveyed in an annual Human Rights Campaign equality report had “trans-inclusive” benefits—in 2016, 79% of companies offered those benefits. In 2008, 90 companies created transition guidelines, which jumped in last year’s report to 459 companies.

“The public conversations over gender identity have broadened and are more common and people are more open. People are increasingly comfortable expressing their true gender identity,” Sabnis said. “Employers are already dealing with this reality on a national level and are going to need to continue to do so.”

Supreme Court Battle

The Justice Department aligned itself with funeral home’s argument in the upcoming case before the Supreme Court.

The DOJ further says that fundamental employer policies surrounding any sex-specific rules, including dress codes and bathroom preferences, would be at risk if the high court were to side with Stephens.

The court will also consider two separate but similar cases over whether sexual orientation should be protected under Title VII on Oct. 8. A DOJ spokeswoman declined to comment on dress codes beyond the brief it filed to the court.

The Alliance Defending Freedom, which is representing the funeral home, told the Supreme Court that Rost had no choice but to fire Stephens after she informed him that she would be wearing women’s clothes to work, in line with her gender identity.

Businesses should be allowed to differentiate between men and women in their dress codes, the group argued. In addition, it says the EEOC overstepped in suing the funeral home for enforcing this policy and abiding by federal laws. EEOC “elevated its political goals” above the funeral home’s mission, the group said in a statement on its website.

Stephens’ attorneys with the American Civil Liberties Union say the argument by the DOJ and the funeral home about dress codes is an attempt to re-frame the case. It was clear during litigation that Stephens was fired because she no longer wanted to present as the gender she was assigned at birth, the ACLU says.

“The implication goes far beyond LGBT people. They are affirmatively saying that they must be allowed to maintain sex-specific dress codes,” said ACLU attorney Ria Tabacco Mar said of the DOJ’s stance. “There is no question that for employees who are transgender there are specific harms.”

Challenges to Dress Codes

Sex-specific dress codes have been debated for decades, including in appeals courts and the Supreme Court. In recent years, debates have also surrounded policies that discriminate on the basis of national origin and race. Fewer surround the question of sex, which is crucial to the gender identity question.

The ACLU filed charges with the EEOC earlier this year on behalf of Meagan Hunter, a server at Chili’s Grill & Bar in Phoenix. When she applied for a training program to become a manager, she was told her button-up shirt, fitted slacks, and boat shoes were inappropriate, the ACLU said in the pending claim. Hunter says she was told her wardrobe needed to be more “gender appropriate” and she wouldn’t get the promotion.

Attorneys with the ACLU say women and LGBT people are often excluded from opportunities at work and school because they don’t “look the part.” That’s despite a landmark 1989 the Supreme Court case, in which the justices ruled in favor of Ann Hopkins, a woman who was told she needed to “walk more femininely, talk more femininely, wear makeup, have her hair styled, and wear jewelry” to have more professional success. That decision in Price Waterhouse v. Hopkins cemented the idea that employers can’t punish employees if they don’t fit gender stereotypes.

Court rulings have varied on the question of sex-specific dress codes. Female casino workers lost challenges to dress and appearance standards at Harrah’s Casino and Borgata Casino Hotel & Spa. Some female employees fared better in the 1980s, challenging airline appearance policies based on weight. Continental Airlines Inc., for instance, had imposed strict weight restrictions on female flight attendants, but not male employees.

An EEOC ruling in 2015 ruled specifically on a related issue of whether a policy violated a transgender worker’s rights. Tamara Lusardi, a transgender employee who transitioned from male to female on the job, was barred from using the women’s restroom, and her employers continued to use male names and gender pronouns to address her. The EEOC found that these actions violated the law.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com