Apr 11

Workplace Dress Codes: Some Off-the-Cuff Remarks

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Employees aren’t supposed to go to work for a fashion show. In California, an employer generally can tell employees “what not to wear.” He just better not engender gender discrimination if he has at least five employees. That’s because the Fair Employment & Housing Act (FEHA) prohibits an employer who regularly employs at least five employees from imposing appearance, grooming, or dress standards that discriminate against an employee based on sex and significantly burden him or her. Even when an employer’s standards don’t differentiate based on sex, he better not dress down a transgender employee for dressing up.

Double Standards? The “Unequal Burden” Test

Generally, an employer can make men and women dress differently, but he must let an employee dress consistently with his or her gender identity and expression.

Generally, an employer can make men and women dress differently, but he must let an employee dress consistently with his or her gender identity and expression. 

FEHA permits an employer to impose reasonable workplace appearance, grooming, and dress standards.1 He can even impose standards that differentiate based on sex. For example, an employer can require male employees to cut their hair short and female employees to wear make-up.2 But an employer’s standards can’t both differentiate based on an employee’s sex and “significantly burden” him or her.3 For instance, an employer can require all employees to wear sex-differentiated uniforms, but he can’t require only female employees to wear uniforms.4

Even if an employer’s standards don’t significantly burden a female employee more than a male employee, the employer must still let an employee dress consistently with his or her gender identity or gender expression. For example, a German restaurant can require all male employees to wear Lederhosen and require all female employees to wear Dirndl skirts. But the restaurant can’t make a transgender male-to-female (MTF) employee wear Lederhosen just because the employee was born a male. That’s because FEHA considers a transgender MTF just as much of a female as a biological female.5

That doesn’t mean an employee can always wear whatever he or she wants. In Carmel, nobody can walk on public streets or sidewalks in shoes with heels measuring more than two inches in height and less than one square inch of bearing surface, unless the wearer obtains a permit from the City.6 The wearer can obtain such a permit only if he/she agrees to relieve the City of liability for damages resulting from a fall on the streets or sidewalks while wearing his/her high heels.7 Fortunately, no Carmel ordinance seems to prohibit an employee from wearing high heels in the office. 

Why Women Really “Wear the Pants” in California

In California, an employer with at least five employees can't ban a woman from wearing pants.

In California, an employer with at least five employees can’t ban a woman from wearing pants.

California’s “pants” law, an adjunct to FEHA, is the major exception to the rule that an employer can have appearance, grooming, and dress standards that differentiate based on sex. Under the “pants” law, an employer who regularly employs at least five employees may not refuse to let an employee wear pants “on account of” his or her sex.8 In other words, an employer can’t make female employees wear skirts if he lets male employees wear slacks. But the “pants” law also protects male employees (including transgender female-to-male employees) who want to wear pants. Thus, an employer can’t let all female employees wear pants but make male employees wear shorts.

The “pants” exception itself has three exceptions. First, an employer can require employees in a particular occupation to wear a “uniform.”9 That’s why an NFL cheerleader can’t wear a Victorian gown to the game. Second, an employer can require an employee to wear a costume while “portraying a specific character or dramatic role.”10 Thus, the “pants” law doesn’t permit a Disneyland actor who portrays Donald Duck or some other pants-free character to wear pants over his costume. Third, any employer can apply to the Department of Fair Employment & Housing (DFEH) for an exemption for “good cause.”11  


  1. 2 CCR §11034(g). 

  2. Jespersen v. Harrah’s Operating Company, Inc., 444 F.3d 1104 (2006). 

  3. Id

  4. Frank v. United Airlines, 216 F. 3d 845, 855 (9th Cir. 2000). 

  5. Gov. Code §12926(r)(2). 

  6. CMC §8.44.020. 

  7. CMC §8.44.030. 

  8. Gov. Code §12947.5(a). 

  9. Gov. Code §12947.5(b). 

  10. Gov. Code §12947.5(c). 

  11. Gov. Code §12947.5(d). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.