High Heels in Workplace: Can Employers Still Require Women to Wear Them?
Unless the employer will impose the same requirement on men, then the answer is no.
Employers generally have freedom to regulate employees’ appearance in the workplace. Employers typically require employees to wear uniforms or clothing that conveys a particular image, and can even prohibit visible tattoos and most body piercings so long as they are not religious in nature. However, problems arise when these policies are not enforced evenhandedly amongst both sexes.
Take Nicola Thorp as an example. Ms. Thorp recently gained media attention after she was sent home for wearing flat shoes rather than high heels on her first day of work at a financial services company in London. “The supervisor told me that I would be sent home without pay unless I went to the shop and bought a pair of two to four-inch heels,” Thorp told Hatty Collier of the London Evening Standard on May 12, 2016. Thorp was eventually ‘sent home for refusing to wear high heels,’ Thorp had been assigned to work as a receptionist and was largely responsible for escorting clients to meeting rooms.
Another example is Nicola Gavins. Gavins recently shared a photo on social media of a friend’s feet bleeding after working a full shift as a waitress claiming that the Canadian restaurant forced its female staff to wear shoes with at least one inch of heel.
While these examples have not yet advanced into litigation, employers in the United States should be aware that under Title VII of the Civil Rights Act, it is illegal to discriminate against an employee or applicant on the basis of race, color, religion, national origin, or sex. This means that dress codes, grooming requirements, or other appearance-based policies must not have a disparate impact on any particular protected class regardless of the employer’s intention. Where appearance standards clearly apply differently to men and women, they have been held to be prima facie discriminatory under Title VII. Such policies are legally permissible so long as they are enforced in a non-discriminatory fashion or if based on a bona fide occupational qualification, such as safety.
Employers have greater chance of avoiding appearance-based claims if they institute clear appearance policies that are enforced in a non-discriminatory fashion