Dress Codes and the Law

CNN.com
By Joanna L. Grossman, FindLaw Columnist Special to CNN.com

(FindLaw) -- In Enriquez v. West Jersey Health Systems, the court held that New Jersey's Law Against Discrimination protects transsexuals from discrimination both on the basis of disability and on the basis of sexual identity.

Carla (born Carlos) Enriquez was a biological male afflicted with gender dysphoria, a gender identity disorder also known as transsexualism. The preferred treatment for gender dysphoria is sex reassignment, a transformation that takes years to complete.

Before surgery that changes the individual's anatomical gender to align with his or her psychological one, transsexuals begin the transformation by assuming the external appearance of the opposite sex. For Carla, this meant shaving her beard, piercing her ears, growing long hair and wearing a ponytail, and, by virtue of hormonal therapy, beginning to grow breasts.

Meanwhile, Carla was working as a doctor in private practice. Her contract with West Jersey Health Systems provided that either party could terminate the relationship upon 90 days written notice, with or without cause.

Upset with her external changes, the higher-ups at West Jersey Health confronted Carla and, according to her complaint, told her to "Stop all this and go back to your previous appearance." When Carla refused, she said, she received a letter terminating the professional services agreement.

Transsexuals and sexual-orientation discrimination

As do many other states, New Jersey has a law prohibiting employers from discriminating on the basis of sex. Unlike most states, however, New Jersey also prohibits employment discrimination on the basis of "affectional or sexual orientation," a provision added by the legislature in 1992 and defined to include heterosexuality, homosexuality and bisexuality.

One question in the Enriquez case was whether this provision was broad enough to encompass discrimination against transsexuals. The New Jersey court said no. Because most transsexuals, including Carla Enriquez, are not homosexuals, the court refused to apply this provision of the statute.

Transsexuals and sex discrimination

Enriquez did, however, receive a favorable ruling on another ground. She also alleged a more traditional sex discrimination claim against West Jersey Health, on the theory that sex includes gender and forcing men to "act like men" and women to "act like women" constitutes gender discrimination.

This argument has not, thus far, been successful in cases proceeding under Title VII, a federal law prohibiting employment discrimination on the basis of sex. No federal circuit court has squarely held that transsexuals are protected by Title VII, and several have held that they are not.

The New Jersey court, however, interpreting New Jersey law, ruled that Carla was correct: Discrimination against transsexuals constitutes gender discrimination. (The court also held that discrimination against transsexuals might constitute illegal disability discrimination under New Jersey law).

The effect of Waterhouse v. Hopkins

While the New Jersey court's ruling differed from those of federal courts that had confronted the same issue, the New Jersey court did find one federal precedent persuasive. It relied on the United States Supreme Court's 1989 decision in Price Waterhouse v. Hopkins, which took a very broad approach to defining sex discrimination.

In Waterhouse v. Hopkins, the plaintiff was denied partnership in an accounting firm, at least in part because she was too aggressive, cursed like a truck driver, and did not walk, talk, or dress in a feminine manner. In short, she was a woman who acted like a man, and for that she was dealt a career-stunting blow.

The court held in Waterhouse v. Hopkins that Title VII forbids employers from discriminating against an employee for failing to live up to gender-role expectations. You can't, in other words, punish a female employee for not being feminine enough.

Refusing to allow employers to discriminate against transsexuals who dress and maintain an outward appearance that is inconsistent with their anatomical sex would seem to be a logical consequence of the Waterhouse decision.

If a female employee cannot be punished for not being feminine enough, then certainly a (biologically) male employee like Carla cannot be punished for not being masculine enough.

Yet with the exception of the recent New Jersey ruling, courts, for the most part, have stuck to their guns despite Price Waterhouse. That is, they have continued to interpret Title VII and its state counterparts to permit employers to punish transsexuals for, in essence, failing to conform to gender expectations. Why?

The law of dress codes

There has been a long-standing anomaly in Title VII case law that permits employers to maintain sex-specific dress and grooming codes. Employers can, for example, require that men wear short hair, while allowing women to grow theirs long. They can also require men to wear business suits and ties, while requiring women to wear dresses.

Decisions upholding these kinds of rules are anomalous because they seemingly permit precisely what Title VII clearly forbids: treating employees differently on the basis of sex. Not surprisingly, the reasoning of these decisions is unconvincing.

To justify the dress and grooming codes at issue, courts have at times resorted to platitudes about employers having the prerogative to run their business the way they see fit. But, of course, there are lots of ways employers might see fit to run their business that we do not allow.

For example, we do not allow employers to hire only white employees, nor to fire older workers and replace them with younger ones. Yet dress code cases, in effect, allow employers to insist on Archie Bunker's world, where "girls were girls, and men were men."

Dress codes: Not gender-neutral

Other courts have attempted to claim that dress and grooming codes are not really discriminatory but are actually gender-neutral, because they require men and women alike to adhere to generally accepted community standards. That these standards are different for men and women, and themselves the product of sex stereotypes, is conveniently ignored.

After all, it is not as if, for example, men traditionally happen to wear beige, while women happen to wear navy. Rather, high heels, long hair, and dresses connote particular "female" traits -- suggesting the wearer is pretty, sexy, demure, fashionable, or what have you. Conversely, short hair and business suits connote the "male" traits of being no-nonsense, all-business and in control.

Moreover, the extra time needed to take care of long hair, and the impediments to movement that high heels and dresses can impose, suggest that they embody not just a style, but a concept of how women should spend their days, and how they should move and behave.

The sheer time investment in dressing "like a woman" can be daunting. Just ask any businesswoman running, in high heels, to make her plane after blow drying her hair and putting on makeup for an hour. Or better, ask her male colleague, already calmly seated on the plane and reading the newspaper.

The future for transsexuals

In any event, however unconvincing their justifications, the dress code cases are bad news for transsexuals. Courts have generally allowed employers to insist that men "dress like men" and women "dress like women" -- and that is precisely what pre-operative transsexuals cannot do.

Still, the New Jersey court in Enriquez was not alone in extending rights to transsexuals. Rather, it followed a small number of state courts that have interpreted state anti-discrimination laws more broadly.

Perhaps federal courts will someday recognize that Waterhouse v. Hopkins cannot be reconciled with their narrow interpretation of Title VII, and follow New Jersey's lead.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination, among other subjects.