Can our bank have a dress code that permits women to wear earrings, but not men?

In our view, imposing different dress codes for male and female employees potentially could expose your bank to claims of discrimination based on sex stereotyping or sexual orientation, although your bank also potentially could have valid counterarguments to such claims. However, we recommend consulting with an employment law attorney for assistance in drafting your dress code, including any differing standards for earrings.

Here, your proposed policy arguably could unlawfully discriminate on the basis of sex and possibly sexual orientation. Both Illinois and federal law prohibit employment discrimination based on an employee’s sex or sexual orientation, among other protected characteristics. A federal appellate court recently held that discrimination on the basis of sexual orientation is sex discrimination under Title VII of the federal Civil Rights Act. The Illinois Human Rights Act expressly prohibits employment discrimination based on sexual orientation, which includes “gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”

We are not aware of any Illinois court case that interprets these prohibitions in the context of a grooming policy that requires male employees to conform to gender norms by prohibiting earrings. However, the federal Seventh Circuit Court of Appeals, which covers Illinois, has held that an employer’s grooming policy constituted unlawful discrimination when it required only female employees to wear uniforms without imposing a comparable requirement on male employees.

Outside of Illinois, a number of courts have held that employers may enforce different dress code standards for women and men (such as requiring short hair for men, but not for women), provided those differences do not impose a greater burden on either gender. On the other hand, at least one of these courts has held that a non-discriminatory dress code policy — one that is different but not more burdensome for one gender — does not shield an employer against potential claims of discrimination based on “sex stereotyping,” which has long been prohibited under federal anti-sex-discrimination law.

In the absence of a court decision applicable to Illinois employers, we are unsure as to how an Illinois court or the Seventh Circuit would interpret a policy that permits earrings for women but not for men. Consequently, we recommend consulting with an employment law attorney regarding your inquiry.

For resources related to our guidance, please see:

Civil Rights Act of 1964 — Title VII, 42 USC 2000e–2(a) (“It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”)

Illinois Human Rights Act, 775 ILCS 5/2-102(A) (“It is a civil rights violation: (A) Employers. For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination or citizenship status.”)

Illinois Human Rights Act, 775 ILCS 5/1-103(Q) (“‘Unlawful Discrimination’ means discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service as those terms are defined in this Section.”)

Illinois Human Rights Act, 775 ILCS 5/1-103(O)(1) (“‘Sexual orientation’ means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth.”)

Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 351–352 (7th Cir. 2017) (“We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”)

Carroll v. Talman Fed. Sav. and Loan Ass’n of Chicago, 604 F.2d 1028, 1029 (7th Cir. 1979) (“The gravamen of the complaint was that defendant imposed a dress code on its female office employees without imposing a comparable dress code on its male office employees. . . . [The] savings and loan association’s dress policy . . . discriminated against women in violation of Civil Rights Act prohibition against sex discrimination with respect to compensation, terms, conditions, or privileges of employment.”)

Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076, 1109–1110 (9th Cir. 2004) (“This case stands in marked contrast, for here we deal with requirements that, on their face, are not more onerous for one gender than the other. Rather, Harrah’s ‘Personal Best’ policy contains sex-differentiated requirements regarding each employee’s hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders are not facially discriminatory.”)

Creed v. Family Express Corp., 2009 WL 35237 at *7 (N.D.Ind. Jan. 5, 2009) (Holding that a “requirement that male and female employees adhere to grooming standards matching their gender doesn’t discriminate on the basis of sex.”)

Creed v. Family Express Corp., 2009 WL 35237 at *7 (N.D.Ind. Jan. 5, 2009) (“Regardless of whether Family Express’s policy is valid under Title VII, however, Ms. Creed may succeed on her sex stereotyping claim if she can present sufficient evidence from which a rational jury could infer intentional discrimination. Family Express can’t shield such discrimination behind a valid dress code and grooming policy. Even if the policy itself is non-discriminatory, Ms. Creed may prove that Family Express discriminated against her if she can show that her gender, not grooming policy violations, actually motivated her termination.”)