Working World

I was told to go home and change clothes because my "neckline was too low." My boss and I don’t get along very well and it seems like she is trying to punish me. Is this legal?  

Contrary to popular belief, your First Amendment right to free expression does not permit you to wear anything you like to work. Employers have wide discretion to set appropriate dress codes and have every right to require attire that is appropriate to its particular workplace, including requiring employees to dress modestly and professionally. For example, many offices prohibit women from wearing tops with spaghetti straps and everyone from wearing flip-flops. These rules are legal.

However, dress codes must be applied consistently and must not violate anti-discrimination laws. A policy that required women managers to wear uniforms but permitted male managers to wear “professional dress” was held to constitute gender discrimination. Nonetheless, some dress requirements that affect only women — or only men — have passed judicial muster. For example, policies requiring only males to cut their long hair have been upheld. On the other hand, a policy requiring women to wear makeup in accordance with a company policy has also been upheld (over a vigorous dissent).  

In California, Section 12947.5 of the Government Code stipulates that it is an unlawful employment practice to prohibit an employee from wearing pants because of her gender.

Flexibility may be required where an employee’s disability or religious convictions must be accommodated. While an employer may require men to be clean-shaven in general, it may not enforce this policy against an employee whose religion requires that he have a beard. Similarly, a woman who wished to cover her head with a scarf for religious reasons should be afforded accommodation.

In your case, perhaps you should be thinking not necessarily about your legal rights but rather the message your boss is sending you. Look around at your coworkers’ dress and consider whether your outfits are fitting in with the look of your office. Your boss’s action suggests that perhaps your mode of dressing does not fit with your office environment and will not bode well for your career there.   

Amy Semmel is an attorney with the firm of Donfeld, Kelley & Rollman. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.