Texas Department of Agriculture Opens State to Potential Sex Discrimination Suit Over Dress Code

The Texas Department of Agriculture distributed a new dress code to employees, which in part mandates that they dress “manner consistent with their biological gender.” Local paper Texas Observed obtained and published a copy of the memo.
The policy states that repeated violations of the policy will be subject to “corrective action.” Initial offenses would require an employee to “go home, change into conforming attire, or properly groom, and return to work. Repeated offenses would result in further penalties, including, including termination.
The memo provides examples of “appropriate” attire for women, including not showing “excessive cleavage” and says skirts must be “within four inches of the knee,” but “pants and Western apparel are allowable”. The expectations for men, on the other hand, are essentially to wear button-down shirts and socks, according to the memo published by the Observer, though shirts “must be tucked in.”

The Department is currently run by Commissioner Sid Miller, who vocally supported Donald Trump’s ban on transgender persons in the military. The Supreme Court overturned this ban in 2020 in a 6-3 ruling. Justice Gorsuch wrote on behalf of the Court that sexual orientation and gender identity are protected classes under the law. The Department’s current policy potentially runs afoul of this Supreme Court ruling.

Are Dress Codes Discriminatory?

Title VII of the Civil Rights Act prohibits discrimination by any employer on the basis of sex or gender. Any dress code which places different standards upon men and women may be considered illegal due to sex discrimination. A dress code cannot reinforce stereotypes regarding gender.

The law generally prohibits dress codes that reinforce gender stereotypes because such stereotypes are demeaning to employees, regardless of sexual orientation. Sending a woman home because her skirt is judged too short reeks of patriarchal middle school administer behavior. In fact, it would likely cost the state more time and money to send an employee home and expect her to come back rather than just leave the issue be. Similarly, men also face discrimination from a dress code. Men are often prohibited from wearing earrings or required to keep their hair short even while women are not.

Moreover, the Agency’s dress code itself hints that dress codes are not based on sex, but culture. “Western apparel” is explicitly “allowable,” suggesting that “non-western apparel” is not. For instance, in conservative Islamic countries, burkas are appropriate clothing for women and Scottish kilts are acceptable for men. If the agency is basing dress codes on “western” standards, then it could also be violating the Civil Rights Act’s prohibition of discrimination on the basis of nationality.

Many also suspect that this dress code is a thinly veiled attack on homosexual or transgender persons who don’t conform to their “biological gender.” The state should not enact policies that target specific groups. However, this policy would harm “straight” people as well. People cannot always adequately determine the biological sex of another person, even if that other person is completely heterosexual. Demanding that a straight man dress more like a man would be as demeaning as demanding that a transgender woman dress like a man.

Professionalism is an important value especially in a political environment where certain ex-Presidents engage in childish name-calling and public temper tantrums. However, wearing a suit does not make one professional. Dress codes are not necessary to encourage professionalism and in fact may needlessly obstruct employees from their work.

Do I Need An Employment Lawyer?

It is helpful to have the assistance of a discrimination lawyers if you have any questions or concerns regarding your company’s appearance policy or dress code. Your lawyer can assist you with the differences between fair company policies and policies which may constitute unjust discrimination. They can also represent you in court if you need to attend trial or other important hearings.