Waitress Told to Wear a Skirt and Look More Feminine Wins Sex Discrimination Case

In Scotland, an eighteen-year-old part-time waitress was asked to wear a skirt and makeup so she would be “easy on the eyes” to male customers.

The young woman claims that she was offered a full-time position as a waitress at the restaurant, but was pulled aside by the manager and told to wear a skirt, makeup, and her hair down to look more feminine and attractive to the customers. After she complained, she was told her existing hours would be cut and that she was no longer offered the full-time waitressing position. She decided to file a sex discrimination lawsuit.

A judge at an industrial tribunal, who makes decisions in legal disputes regarding employment law, awarded her $4,372 for discrimination and lost wages.

Would a case like this prevail in America?

What is Sex Discrimination?

Sex discrimination includes any unequal treatment on the basis of sex. The treatment must not only be different, but also unequal, and therefore lead to inequality between the sexes. For example, designating male versus female bathrooms for each gender does not rise to the level of sex discrimination. However, an employer who pays a woman less for the same work a man performs does constitute sex discrimination because it is unfair.

Title VII of the Civil Rights Act of 1964 provides protections against sex discrimination in the workplace. The Act makes it illegal for employers to either:

1. fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation terms, or privileges of employment, because of that individual’s sex; or,
2. limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect that person’s status as an employee because of such individual’s sex.

In laymen terms, all employees or applicants must be given equal opportunities for employment and advancement within the company organization. Further, no person can be deprived of any employment opportunity based on his or her gender.

Sexual harassment is also a form of sex discrimination. Generally, sexual harassment may be found if an employee experiences unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.

Can An Employer Require Female Employees Wear Skirts?

The short answer is “yes.” Generally an employer can impose a dress code that requires female employees to wear skirts. However, the employer must have a legitimate business necessity for this requirement and it must be reasonably related to the employer’s business needs.

For instance, if the employer wants to foster a professional atmosphere, the employer may require more formal dress, which includes a requirement that female employees wear skirts while their male counterparts wear slacks. There have been some cases where employers have been found guilty of sex discrimination against women for requiring them to wear skirts and not having any equivalent policy (such as wearing slacks) for men.

While it is generally admissible for employers to impose dress codes, it must be done with sensitivity and strict adherence to the law. A dress code cannot impose a greater burden on one gender than another. Referring back to the previous example, it would be sex discrimination require female employees to wear skirts, but have no formal dress code requirement for male employees.

Further, the employer must be careful about sex discrimination and stereotyping claims. Therefore, it is advised that the employer create exemptions in some cases to the dress code, or to forego a dress code altogether to avoid claims of sex discrimination.

Just as an employer is entitled to establish a dress code that requires female employees wear skirts, they may also require female employees wear makeup. However, the employer cannot pass up a female employee for advancement, or terminate a female employee because she did not wear makeup.