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Can Gay or Lesbian Employees Sue Over Dress Codes?

A former CNN employee who had worn brightly colored clothes to work for the previous ten years launched a $60 million discrimination lawsuit after he was fired last June. His supervisor had specifically objected to the yellow mariachi suit, declaring that it was “too flamboyant for a male.” In his lawsuit William Kane claims that he was let go from the station’s New York office after his supervisors learned of his same-sex engagement.

By themselves, employer dress codes are not illegal.  In general though, no rule, including a dress code, may be sexually demeaning or impose discriminatory burdens on groups of people protected by the law.  The policy must also be fully disclosed to employees.  So, the problem breaks down into three pieces:

  • Are gay employees protected by anti-discrimination laws?
  • Did the supervisor’s conduct break the law?
  • Did the dress code violate the law because it was either not disclosed or imposed a discriminatory burden?

Are Gay and Lesbian Employees Protected by Anti-Discrimination Laws?

To understand anti-discrimination law, it is necessary to appreciate that states may offer greater protection to employees than federal law, and localities may offer greater protection than either state or federal law.  It matters where a dispute arises.

Federal Law.  The Civil Rights Act of 1964 does not protect gay and lesbian employees.  The law includes a long list of protected categories, including race, religion and sex, but federal courts have yet to understand the term “sex” to include sexual orientation.

New York Law.  New York’s Labor Law does list sexual orientation among the protected categories.  So, gay and lesbian employees are protected from discriminatory employment action, if that is what occurred.  New York City’s Human Rights Law may be even more protective of the rights of the plaintiff.

California Law.  California’s Labor Law is also protective of the employment rights of gay and lesbian employees.  So, if the incident had occurred in California, rather than New York, courts would probably reach the same conclusion about the threshold question.

Texas Law.  Texas law does not specifically protect employees from adverse employment action based on the employee’s sexual orientation.  Specific localities may enact laws that are more protective.  However, had the incident occurred in Texas, the plaintiff might simply have been out of luck unless  local law came to the rescue.

Did the Supervisor’s Conduct Break the Law?

A word of advice to supervisors, here – Good grief!  Will you learn when to stop talking?

Firing an employee for wearing something or failing to wear something is not illegal.  Most reasons for firing employees are just fine under the “employment at will” doctrine.  Employers can prohibit the color yellow or  button-down shirts in the workplace.  This is true unless the employee is either protected by a contract or if the reason for termination is prohibited by law.

The “flamboyant” comment, coupled with the employee’s announcement of his engagement to another man will cause CNN much more trouble than the firing, itself.

Had the Dress Code Been Properly Disclosed?

This is an issue of fact to be decided at trial if the case goes there.  The plaintiff would probably testify that he had worn bright clothing before without a problem.  This suggests that the policy had not been properly disclosed or was arbitrarily enforced.

There may also have been mixed motives for his termination, with part of that motive being impermissible discrimination  on the basis of sexual orientation.

Does the Dress Code Impose a Discriminatory Burden?

This is where the case gets interesting because it involves making a distinction between the discriminatory intent of a rule and its potentially discriminatory impact.  Equal and fair are not always the same.

Let us suppose that the dress code forbade head coverings in the workplace, and it covered all employees equally.  For most people, a hat is a fashion statement.  Fashion sense is not a protected category under state or federal law.  For some people, however, a head covering is a religious obligation.  In this situation, a dress code that forbade head coverings would have a discriminatory impact on a protected group of employees.  The employer would have to take the next step of demonstrating that the restriction was necessary for safety or other reasons.

An adventurous attorney might try the argument that a dress code ban on vivid colors or mariachi suits imposed a discriminatory burden on gay or lesbian employees because of their sexual orientation. It’s a stretch.  For many people, the yellow mariachi suit is a step too far.  But if some hungry lawyer wants to try this, we’ll be happy to watch.

When Can Employees Sue Employers?

Any time they want to.  The question is, when might an employee win.  With respect to dress codes, keeping employees happy is largely a matter of disclosure and an inclusive corporate culture.   If an employee challenges a restriction on the basis of the burden it imposes for racial, religious, gender or national origin reasons, it is time to evaluate whether the rule can be defended for a valid business reason.  If it cannot, get rid of the rule. If it can, then defend it.

Anne Wallace, Esq.

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Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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