Is your dress code indirectly discriminating against staff?

  • Discrimination
James Potts - Legal Services Director at Peninsula

James Potts, Legal Services Director

(Last updated )

In 2016, Nicola Thorp, a temp receptionist, was sent home on her first day on the job after refusing to wear high heels.

She accused the company of sexism and started a petition to ban companies from forcing women to wear high heels at work. She managed to obtain over 152,000 signatures and the company faced huge backlash.

If you have a dress code in your workplace that sets out what staff can and cannot wear, you need to make sure it doesn’t discriminate – or you’ll be at legal risk.

Although it might make sense to ask staff to dress in a certain way from a business perspective, it doesn’t work for everyone. Dress code is easy to overlook, so make sure to ask yourself…

1. Is it disability-friendly?

Is your dress code suitable for staff with disabilities?

Some people have disabilities that make certain clothing uncomfortable or even painful to wear if it’s not adapted for them.

So, if your worker is having issues with the dress code or uniform, you’ll need to make changes or allowances to help them feel more comfortable. If you don’t, your staff might accuse you of indirectly discriminating.

As an employer, you have a legal duty to protect staff from disability discrimination and make adjustments where necessary.

2. Does it support cultural and religious diversity?

Next, you need to consider whether your dress code is inclusive of religions and cultures. Certain religions have their own dress codes for observers as a declaration of their faith.

Some examples include:

  • when Muslim females wear headcoverings (the hijab)
  • when Jewish males wear headcoverings (the kippah)
  • when Sikh males refrain from cutting their hair and manage it by wearing a turban

If you try to make a religious observer cut their hair or remove their headcoverings, you would be liable for religious discrimination. So, you need to be careful about any dress code rules you may have around hair length, shaving or even tattoos (as staff may have religious tattoos).

Your staff have a right to express their religious identity. Which leads on to the next point…

3. Does it allow for self-expression?

Now more than ever, staff want employers to respect their individuality – and many think a dress code is trying to stifle that.

This doesn’t mean you have to throw dress code out the window.

It just might be better to place more trust in your staff’s judgement about what is and isn’t appropriate for work. You can still ask that staff look ‘professional’ in the workplace whilst giving them more freedom to express themselves.

You’re likely to see higher levels of morale and retention in taking this stance.

Your staff should be able to feel that they can be their authentic selves at work. Yet, there are still reports of LGBTQ+ workers being told to dress in a way that aligns with ‘traditional’ gender norms. This also begs the question…

4. Is it gender-neutral?

If you have one set of rules for women and another for men, you’re in risky territory.

But you’ll be safer from sex discriminatory claims if there’s a level playing field (i.e. you don’t set more rules for women than men).

To level the playing field, your dress code should lay out common standard rules for men and women. This isn’t the case if it creates:

  • gender stereotypes – by saying women must wear ‘dresses’ and men must wear ‘suits’
  • imbalance – by making women invest more money than men on clothes and cosmetics

Gendered dress codes can also discriminate against:

  • someone who is trans and has a different gender identity from the sex they were assigned at birth
  • someone who is non-binary and doesn’t consider themselves to fall into the gender binaries of ‘male’ or ‘female’

To minimise risk, it’s best to have a gender-neutral dress code. Consider using more generic, non-gendered requirements like ‘dress smartly’ or ‘appear clean and tidy’ that apply to everyone.

Need to give your policies a new look?

An inclusive dress policy lets staff know you want everyone to feel comfortable and authentic at work.

The wording you use in your policy is important as this will help you avoid gender stereotypes and ultimately create stronger working relationships.

You don’t need to stress about the wording in your policy when you have HR documentation specialists on hand to do it for you. As a Peninsula client, your HR experts will craft up watertight policies and contracts designed to boost staff wellbeing and eliminate legal risks.

Whether you need to update your policy or craft up a new one, your documentation experts have you covered – just give us a call.

Not yet a Peninsula client? To get industry-leading HR advice, policy support, and more, get in touch on 0800 051 3681

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