Explore the legal position and main issues employers face when dealing with sex discrimination in the workplace.
Glam up or get out?
As long as employee appearance policies do not unlawfully discriminate and apply equally to men and women then the managerial prerogative is strong in relation to the issue of corporate image
The recent furore around the insistence by an employment agency that a temporary PwC employee, Nicola Thorp, should wear high heels to work has again highlighted the challenge of maintaining appropriate and defensible standards to create a desired corporate image. Thorp, who turned up to work for PwC in flat black shoes, was told to go and buy a pair of high-heeled shoes. When she refused she was sent home without pay. She subsequently launched an e-petition criticising outdated and sexist dress codes, which has led to an inquiry being launched by the House of Commons.
Of course, all organisations, either formally or informally, will have expectations about how their employees present themselves in the workplace. In this manner, employee appearance can be modified through uniforms, appearance standards and dress codes. The Thorp case though clearly highlights that this remains an issue fraught with difficulty. In many respects these difficulties can be seen from a legal perspective and more broadly an employee engagement perspective.
In simple terms, organisations do have a legal right to have policies around an employee’s appearance. As long as such policies do not unlawfully discriminate and apply equally to men and women then the managerial prerogative is strong in relation to the issue of corporate image — a view supported by much of the case law in this area.
However, as the Thorp and other examples have illustrated, the reality is that often, prescriptions around the desired corporate image are highly gendered. This is particularly the case when organisations are seeking to employ front line staff who best represent the desired corporate image.
Work that I’ve done with colleagues on the idea of “aesthetic labour” shows how retail and hospitality organisations often have stringent appearance standards in first recruiting and then seeking to further mould an appropriate “look” once employed. Whilst we have argued that aesthetic labour can apply to both men and women, we have also acknowledged that women are much more likely to find that the aesthetic requirement is heightened.
At its extreme, this “look” can often be highly sexualised, with Hooters being a notorious example of such an approach. Even more extreme again is the so-called “Borgata Babes” case last year in which a court in the US ruled that cocktail waitresses in a casino in Atlantic City have to stay within a certain weight requirement, as part of maintaining the desired “sexy” image sought by the casino. In essence, the legal arguments which have been used to deflect challenges against such prescriptions have been that these expectations were made clear to employees at the point of recruitment.
From an employee engagement point of view, the issue hinges on the manner in which employees may feel pressurised by the organisation to present themselves in a certain way, which can be at odds with their “self-expression”. There may then be a tension between organizational objectives of social control through the creation of what they deem an appropriate corporate image and employees’ desire for self-expression.
As the above examples highlight, this power dynamic remains strongly in favour of employers, but employers can still respond to changing societal expectations around what denotes an appropriate look. A good recent example of this point is Starbucks. The company announced in October 2014 that, having consulted with their employees, it will now allow employees to show non-offensive visible tattoos, as long as they are not on the face or throat. This decision, in response to an employee petition, marked a significant shift in the company’s thinking. In considering the issue of tattoos, Starbucks posed a question to its employees’ on its Facebook page:
“How do you suggest we strike the right balance between self-expression and professionalism?”
This question should form part of organisational thinking in developing and justifying appearance standards and dress codes; not just legally but also ethically and from an employee engagement point of view.
Given the prevailing managerial prerogative around creating the desired corporate image, it seems an element of pragmatism is required on the part of employees applying for a job for which there may be certain appearance standards — especially where these may be extreme as the examples of Hooters and the “Borgata Babes” case illustrates. That is not to imply that I support the decisions taken by the courts in the US which have supported these companies’ stance. I don’t, and think serving food and drink should be about good service and not good looks.
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