Gender Identity and Dress Codes: Balancing Expression and Professionalism

By Douglas Lipsky

New York City workplaces are vibrant with diverse populations. One aspect of this diversity is the recognition of nonconforming gender identities and expressions. As society becomes more aware of the spectrum of gender identities, employers are faced with the challenges of adapting dress codes to this evolving landscape. Let’s explore the rights of workers to dress in alignment with their gender identity or expression and how an employment lawyer can help employers and employees balance expression and professionalism. 

Can Employers Enforce a Dress Code?

Employers certainly have the right to implement and enforce dress codes to maintain a certain level of professionalism or safety in the workplace. However, there are boundaries. Any dress code policy must be neutral and should not impose a greater burden on one gender over the other. It means policies should not restrictively dictate how men or women should dress, but rather focus on the general appropriateness of the work environment.

New York Laws on Dress Codes and Gender Identity

In recent years, New York has emerged as one of the leaders in advancing civil rights for all its residents, including the LGBTQ+ community. This leadership is evident in its comprehensive human rights laws that protect workers based on gender identity and expression. When it comes to dress codes and the freedom to express one’s gender identity in the workplace, the New York State and City Human Rights Laws play an indispensable role.

New York State Human Rights Law (NYSHRL)

The NYSHRL prohibits discrimination in employment based on a variety of characteristics, including sex and gender identity. Here’s how the law applies to dress codes:

  • Broad definition of gender identity – The law defines gender identity as one’s actual or perceived gender, including, but not limited to, one’s gender-related self-image, appearance, behavior, expression, or other gender-related characteristic.
  • Sex stereotyping – Employers cannot force employees into a particular sex-based stereotype. This includes dress codes that rigidly define what’s “appropriate” for a particular gender. By mandating specific attire based solely on the gender assigned at birth, employers could be seen as reinforcing sex stereotypes, which is a prohibited form of discrimination.

New York City Human Rights Law (NYCHRL)

The NYCHRL, enforced by the NYC Commission on Human Rights, goes even further in its protections:

  • Express inclusion of gender identity – The NYCHRL expressly lists gender identity and gender expression as protected characteristics. This means that discriminating against someone based on their gender identity, including choice of attire aligned with their gender identity, is unlawful.
  • Guidance on dress codes – The commission provides guidance that dress codes must be applied in a non-discriminatory manner. An employer cannot require attire or grooming standards based on sex or gender. For example, enforcing that only men can wear pants or only women can wear makeup would be discriminatory.
  • Binary-free regulations – Recognizing the fluidity of gender, the guidelines stipulate that employers should avoid creating male/female dress code distinctions. Instead, employers are encouraged to establish dress codes applicable to all employees, regardless of gender.
  • Accommodations – Beyond just dress codes, the NYCHRL mandates that employers make reasonable accommodations for individuals undergoing gender transition, including the freedom to adhere to dress codes and grooming standards that align with their gender identity.

What This Means for Workers

Employees in New York have significant rights concerning dressing according to their gender identity. Whether someone identifies as transgender, non-binary, or any other gender on the spectrum, they have the right to express this identity through their attire at work, without fear of discrimination or reprisal. If an employer has a dress code that infringes upon this right, it could amount to gender discrimination, giving the affected employee grounds for a legal claim.

The Takeaway

Balancing professionalism with the respect and recognition of diverse gender identities and expressions is essential for fostering a positive work culture. While employers have the right to maintain professional standards, these standards should never come at the expense of an individual’s rights. If you believe you’ve been discriminated against due to a dress code that infringes upon your rights related to gender identity or expression, an experienced employment lawyer can advise on the best course of action.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.