Can employers tell their male employees not to wear shorts?

A firm's new dress code banned men from wearing shorts, yet allowed women to wear skirts. Was that legal?

By Tine Santesson 

It all started with a manager at a major Danish company who came to work on an early summer day wearing sandals. That got the company’s CEO to remind him that the company’s dress code requires that employees display a “formal appearance”. This meant no sandals.

The manager responded with a message of his own to his staff.

“Dear all, yesterday I was given a polite reminder that I had to wear closed-toed shoes and pants on the job, and that I was to make sure that everyone in the facility-management department did the same. The dress code that’s available on our intranet is open to interpretation … women may still have bare legs and show their toes, since that is considered formal attire for a woman.”

But one of the department’s male employees felt that the firm’s dress code was a violation of gender-rights legislation, since it permitted one thing for one gender but not for the other. He also pointed out that, in the past, he and others in the department had worn shorts and sandals at work without being reprimanded for it.

In an e-mail to the manager, he wrote: “It’s sad to see that the management has such an old-fashioned and discriminatory attitude towards gender roles and clothing. Fortunately, the law is somewhat more up-to-date, and the policy is a blatant violation of the Gender Equality Act … .”

Actually, it wasn’t. The man filed a complaint with Ligebehandlingsnævnet, which decides on matters of discrimination, and lost.

One rule, two outcomes

Ligebehandlingsnævnet ruled that even though the firm’s dress code meant that, in practice, women are allowed to show bare legs and toes while men have to wear closed-toed shoes and long pants, the policy itself was not formulated in a discriminatory way; men and women had to live up to the same requirement.

At first blush, it might seem odd that the dress code results in different treatment of men and women, but Kathrine Skøtt Jespersen, a solicitor specialising in human resources with the law firm IUNO, says it makes sense.

“It shows that when we are talking about equal rights we’re not looking to give men and women precisely the same rights down to the millimetre. Put another way, you can’t give men and women exactly the same rights because men and women are not exactly the same. The ruling recognises that ‘formal appearance’ differs depending on your gender. The important thing here is that there is a rule and that it applies to men and to women. They haven’t just said, ‘guys, you’re not allowed to wear shorts. Gals, it’s up to you’.”

Another argument Ligebehandlingsnævnet made in its decision was that the firm implemented the dress code after it was acquired by a foreign private equity firm, which meant that clients and partners from other countries were frequently present in the firm’s open-plan office spaces.

According to Jespersen the decision shows that Ligebehandlingsnævnet finds that a firm’s reputation is a valid reason for dress codes that result in different treatment of men and women.

“The decision shows that you need to have a good argument for the various aspects of your dress code, but it also affirms that indirect discrimination is permissible in certain cases, such as client relations,” she says.

However, the fact that the dress code resulted in a complaint being filed with Ligebehandlingsnævnet serves as a reminder of how important it is for firms to be precise when they draw up a dress code.

“Firms need to think very carefully about the wording they use in their dress codes, largely because only a minority of people really need them,” Jespersen says. “Most people have a good sense of what clothes are appropriate for their position. So, when drawing up a dress code, a firm needs to consider what kind of organisation it is and what type of people work there. If the conclusion is that employees need to dress formally, then the firm has the right to set rules to make sure they do. But a less drastic approach would be to try to deal with it at the managerial level.”

Djøf is rarely asked about workplace dress codes, according to Anna-Sofie Henner Heindahl, a Djøf counsellor. Much more common are enquires from members about how they should dress for an interview.

(This article is published by Djøfbladet. It orginally appeared in Danish online at djoefbladet.dk).