Can Your Employer Make You Dress Sexier?
This week, Hooters, one of America’s leading everyday dining chains dedicated to owls, unveiled a new unified policy for its waiters. Surprisingly, the new uniform features even tighter shorts.
Angry Hooters’ servers reached out to TikTok to denounce the new uniform ( although some reported making more money from new gear ), pointing out that they are mostly underwear-like and somewhat gross. After millions of views on TikTok and some media buzz, Hooter’s course has changed.
“As we continue to listen to and update the Hooters Girls’ image, we clarify that they have the ability to choose from a traditional or new form,” a company spokesman wrote to Business Insider . “They can determine which style of shorts best suits their body style and personal image.”
All this confusion – which, like everything else, could have been a promotional stunt running as intended – got me thinking about the legitimacy of forcing employees to wear sexy clothes, so I asked Chicago Employment Attorney Wesley Johnson. Full Disclosure: Wesley is my older and clearly more successful brother.
Can employers force employees to wear sexy clothes?
“Laws about what employers can force their employees to wear differ from state to state and even from city to city, but in general, whether an employer can require indecent clothing depends on the type of business,” Johnson said.
“The prevailing legal view is that a strip club or restaurant such as Hooters may require its employees who interact with the public to wear such uniforms as long as it does not violate discrimination laws, obscenity laws or otherwise. work. laws where they can state a legitimate business reason for a uniform or dress code, ”Johnson said.
Why aren’t there guys in bandages serving food at Hooters?
Hooters does not employ men as waiters (with the exception of their subsidiary Hoots), which may seem like gender discrimination under Title VII of the Civil Rights Act, but Title VII has a “way out.” Companies are permitted to discriminate on the basis of religion, gender, or national origin “where religion, gender, or national origin is a bona fide professional qualification reasonably necessary for the proper operation of a particular business or enterprise.”
Basically, Hooters wouldn’t be Hooters without female waitresses in short shorts, so the company is not required to hire men to serve food and may require uniforms that might not be suitable for other types of business. “The Hooters have a legitimate business reason to have sexy waitresses. The real estate agency doesn’t do that, ”Johnson explained.
But what if your boss really wants you to work in a French maid outfit?
If employers are (usually) allowed to authorize their employee’s clothing, makeup, and grooming, why might not the real estate company have a sex broker policy in a miniskirt?
“It’s kind of different because you get into discrimination,” Johnson said. “If you demanded the uniform required for your writing work, say, sexually harass you or discriminate against you and have no legitimate business purpose, that would ultimately be a matter for the jury.”
Compulsory work clothing does not usually have to be gender neutral.
Differences in dress and appearance for male and female employees are usually considered legal (depending on where you live), provided that no unjust burden is placed on one group. But what constitutes an “unfair burden” is debatable.
In 2005, the Ninth District Court ruled in a case over the Harrah Casino rules that female waiters were required to wear makeup, wear hosiery and colored nail polish, and “tease, curl or style” their hair. The male waiters were only required to have short haircuts and neatly trimmed nails. The court ruled that the makeup and appearance requirements do not impose an unfair burden on women serving as waiters at Harrah’s.
What about men who want to put on makeup?
Your employer can likely prohibit male employees from wearing makeup in the same way they would require female employees to wear makeup. However, this may not apply if the employee is transgender. “According to recent Supreme Court precedent, if you were trans, they would probably have to let you use makeup,” Johnson said. “This is based on Bostock v. Clayton County, 140 S. Ct. 1731 (2020), a Supreme Court decision that employers cannot fire an employee for being gay or transgender. “
Will the fictional O’Nutters restaurant be discriminatory?
I ran a video of an imaginaryO’Nutters casual restaurant from Inside AmySchumer past Johnson to get his legal opinion on the place.
“If you can open Hooters, you should be able to open O’Nutters,” Johnson said. “Whether you can get away with O’Nutters, it probably boils down to the liquor license issue. While I personally find the ‘wet nut contest’ unacceptable, I think the O’Nutters business idea is promising. “