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Where am I now? Lawlink > Anti-Discrimination Board > Publications > Dressed for success - Equal Time, June 2005
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Dressed for success - Equal Time, June 2005
 Introduction
Ties
Body Piercing
Less favourable treatment
Introduction
Employers are entitled to insist that their employees dress appropriately. They may even have a dress code. But does it cover everything?
Can you ban singlets for men but not women?
Base-ball hats but not turbans?
T-shirts may be fine, but what if someone has an anti-religious slogan printed on theirs?
What is “smart casual”? A new tracksuit in company colours?
What if older women complain about a young female’s mini skirt? And the guys won’t stop ogling?
Anti-discrimination laws can help with some of these dilemmas.
The NSW Anti-discrimination Act, 1977, deals with discrimination on the grounds of sex (including pregnancy) and marital status, race, age, disability, homosexuality, transgender or carer’s responsibilities. “Discrimination” is treating a person less favourably than others in the same or similar circumstances, on the basis of one of these grounds.
It is also unlawful to expect someone to comply with something that is unreasonable, with which they cannot comply, and with which a substantially higher proportion of people of the same age, race, gender, etc., is unable to comply. This is indirect discrimination.
Sikhs who were refused entry to an RSL club because their turbans were deemed contrary to the dress code requiring men to remove their hats upon entry to the club were victims of indirect discrimination. The manner in which the requirement was interpreted in this case was unreasonable. 
The English Employment Tribunal [Thompson v Department of Work and Pensions, Employment Tribunal, case number 2405602/02] considered whether a new dress code requiring men to wear a shirt and tie was sex discrimination. The new code stated that women should dress appropriately and to a similar standard. They could wear T- shirts, provided they were neat and tasteful but men could not.
Most employees accepted these requirements. Forty men, however, including the applicant, objected.
The applicant was an administrative assistant who had no contact with the public and he didn’t wear a shirt and tie. He was warned that he would be disciplined if he didn’t comply. After a formal warning, he complied, under protest, and started legal action. He said that he did not want to be treated differently from a woman and did not want to wear a tie.
The tribunal had to ask itself if the applicant was subjected to any detriment and whether he would have been treated more favourably, “but for” his sex. It had to look at the “overall situation”. This included the fact that there are conventional differences in dress between men and women which society expects.
It said that employers must be able to enforce a dress code to achieve their corporate image goals. They can also, if they wish, have different codes for “front-line” and “back room” staff. It said, however, that in this case, the way in which the dress standard was implemented imposed a higher standard of dress on men. There were no items of clothing that women had to wear and there were some items, such as T-shirts, that women, but not men, could wear. This was less favourable treatment of the men.
The tribunal said that the applicant suffered detriment: his freedom of expression was fettered; he had a sense of injustice as a result of the treatment; and, unlike the women, he had to change his dress habits. Working in the back room, what he wore did not impact on the employer’s corporate image.
The tribunal decided that he had been discriminated on the ground of sex.Body Piercing
A male service station attendant was sacked because he wore an earring, contrary to the grooming policy. Women working at the garage were allowed to wear earrings. The tribunal [Bree v Lupeno Pty Ltd & ors [2003], NSWADT 47, 11/3/03] accepted that this was sex discrimination.
This case doesn’t, however, mean that all employees, even women, can have body piercings. It depends on the circumstances and every case is judged on it’s own facts. A female casino worker’s dismissal was upheld when she refused to remove a tongue stud.
The Industrial Relations Commission [Fairburn v Star City Casino PR931632 (May, 2003)] determined that the casino wanted to maintain a “five star” image and that body piercings were inconsistent with this.
In a recent case, a butcher doing casual work for a large chain of department stores was sacked for wearing an eyebrow ring, contrary to the company’s dress code. He had obtain regular work at one branch where the manager allowed him to cover the eyebrow ring with a blue, “company approved”, bandaid.
He was later told, however, that this was unacceptable because the bandaid or the ring might fall off into food. He brought a legal claim for unfair dismissal.
He was reinstated by the Australian Industrial Relations Commission [Cameron Brown v Woolworths Limited trading as Safeway. PR958576 (6 June, 2005)]. The Commissioner said that while the bandaid never had fallen off, and the eyebrow ring was actually quite difficult to remove, the problem could have been rectified by his wearing a hair net.
Obviously, a bit of commonsense and a degree of flexibility in the implementation of dress codes is called for. It should be noted, however, that the company in this case has appealed the decision. Less favourable treatment
A dress code is only discriminatory if it results in someone receiving less favourable treatment than others in the same circumstances because of their sex, race, age or other ground covered by anti-discrimination laws.
If the dress code is reasonable in the circumstances of the particular job, and particularly if the employee agreed to it when they took the job, they are unlikely to succeed if they later claim it is discriminatory.
This was the issue in a recent case involving a dress code requiring female gaming room attendants to wear mini skirts. The applicant initially agreed to wear short skirts but later claimed that this requirement amounted to sex discrimination. She also accused her supervisor of other sexually harassing behaviours.
The Federal Magistrate [Zhang v Kanellos & Anor [2005] FMCA 111 (11 March, 2005)] rejected her claims, saying that it was relevant that she was happy to wear mini-skirts in her private life and she had posed in a bikini for a men’s magazine.
Not everyone would agree with the decision in this particular case, but it does demonstrate that anyone who claims that a dress code is discriminatory has the burden of proving, on the balance of probabilities, that they have been disadvantaged, or discriminated against, by the requirements of the code.
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