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Sexist dress codes: why employers should walk a mile in their employees’ shoes
18/10/2021
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Sexist dress codes
Authors
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John VDLD
John van der Luit-Drummond
Editor, International Employment Lawyer

To avoid workplace sexual harassment, women should refrain from wearing “tight jeans and short shorts”. Such an eyebrow-raising statement from an employer may appear to be from a bygone era. Yet, this advice was actually delivered in 2013.

First reported by ABC News, a female representative of MCJV – a joint venture between New Zealand-founded construction firm McConnell Dowell and the Queensland Gas Company – had asked fellow female workers to dress less “provocatively” after two male employees were dismissed for sexual harassment at a fly-in, fly-out camp during construction of the Queensland Curtis LNG gas pipeline.

MCJV’s rationale for asking women to dress “more conservatively”? Because men “think the girls are asking for it” and dismissal is a “huge thing” for the men involved as “that’s their career affected”. 

McConnell Dowell now admits the “historic” advice was neither reasonable nor in line with its workplace safety obligations, adding that there had been “significant changes to management personnel” since the directive was issued.

In recent years, women around the globe have fought back for control of what they can and should not be required to wear at work; railing against antiquated and sexist dress codes, such as the requirement to wear high heels or skirts as part of their workplace uniforms. However, the war for dress code equality is far from won.

This past summer saw female athletes take a stand against sexualised and “arbitrary” uniforms at the Tokyo Olympics – a move that led to Norway’s beach handball team being fined for wearing shorts rather than bikini bottoms. The decision has been described as “ridiculous” and in need of review. 

A justifiable code

Naomi Latham, an associate at CM Murray in London, explains that although employers are entitled to have and consistently enforce dress codes in the workplace, care should be taken when doing so.

“Employers may have within their existing policies different dress requirements for men and women reflecting equivalent standards of smartness, or perhaps requiring that workers wear attire that is professionally appropriate for the office or the unit in which they work, or dress in a manner that is consistent with client expectations,” she says.

“However, employers must proceed with caution when drafting their dress codes so as not to treat an employee less favourably because of their sex, and thus discriminate against an individual in respect of a protected characteristic, which includes but is not limited to, gender reassignment, sex, or sexual orientation.”

It is good practice for employers to consider the reasoning behind the wording adopted in the dress code and whether it could be justified if challenged by a worker as being discriminatory, Latham adds.

As businesses begin to return to normal post-covid, now is the time for employers to dust off policies that may be older than the 9-to-5 workday itself. “Like all policies and procedures, dress codes should be reviewed and updated regularly. Employers may be surprised by what is written in older dress codes,” comments Rohan Burn, a senior associate at People + Culture Strategies in Sydney.

“To mitigate the risks relating to sexual discrimination, the same standard of dress – for example, ‘business attire’ or ‘smart casual’ – should be applied consistently, regardless of gender,” he continues. “Employers should put themselves in their employees’ shoes. Employees should not be required to adhere to a dress code that management would not adhere to if performing the same role.”

It is also wise for employers to consider whether their uniform policies or dress codes discriminate against employees who do not conform to gender stereotypes. In June, it was reported that a non-binary flight attendant was allegedly being forced into choosing between Alaska Airlines’ male or female uniforms. The attendant said the choice “excludes me and leads to me being misgendered at work”.

“Employers should look to adopt dress codes that are both flexible and gender-neutral,” advises Latham. “However, the content of the dress code must provide workers with the power to exercise discretion and control over their appearance and ability to wear clothing that is safe, comfortable, and appropriate to the working environment and their gender identity.”

 

Dress codes for the modern workplace
If a company is establishing or refreshing a dress code it should:

– Conduct a thorough consultation with its workforce, with employees made aware of a point of contact who can address any particular questions or concerns.
– Ensure the standards contained within the code are equivalent for both men and women.
– Ensure existing policies do not favour or affect one gender over the other, and avoiding gender-specific requirements.
– Consider modifying existing policies to include gender-neutral language.
– Consider removing binary distinctions from dress codes.
– Avoid requiring workers to wear clothing that enforces gender stereotypes and allow a more flexible approach in the policy itself by allowing workers to choose how they present themselves providing that they meet the professional standards required.

 

“Pyjama” working

An employer’s policies and procedures are not limited to the four walls of the traditional workplace and it is perfectly reasonable for an organisation to ensure its staff dress appropriately when representing the employer before clients and in public. But following almost two years of so-called “pyjama” working, employers may struggle to get their employees out of sweats and slippers and back into business attire. A further complication will be how to enforce any dress code on those employees who will continue to work fully or partially from home.

“It is generally reasonable to apply a dress code consistently to workers at home and the workplace, particularly if remote workers are required to attend meetings virtually – which in our experience, creates more engagement with remote workers,” says Burn.

“Inevitably, workers may well have adopted a relaxed approach to their workwear, but it may now be the time for employers to revisit their existing dress codes,” suggests Latham. “By doing so, employers can look to provide simplified guidelines which operate to remind workers that they should ensure their attire is suitable when they appear on video conferences with clients when working remotely, and that a more relaxed approach can be adopted outside of this.”

The importance of clearly communicating when a more relaxed approach is appropriate cannot be understated, adds Burn. “While remote workers may think it is only necessary to comply with the dress code from the waist up, some remote workers have been caught out for not complying fully with dress codes when quickly moving away from their workstations. This can be embarrassing for the individual but also damaging to the professional image of the company.”

Unless expressly stated, however, it is often the case that dress codes do not form part of an employment contract and so cannot be enforced in the same way. In instances where a remote employee has failed to comply with a dress code, Latham advises employers to rely on contractual wording that states a failure to comply with workplace policies – such as a dress code – may lead to disciplinary action or result in dismissal.

Still, as organisations transition to the post-pandemic era, and new forms of hybrid working, Latham suggests employers may well focus more on functionality, due to the changing nature of the workplace, rather than a formalist approach. Likewise, for employers that have a more relaxed dress code from time to time, such as “casual Fridays”, Burn suggests it may be appropriate to allow remote workers to meet these less formal dress code requirements.