Our dress code says women servers have to wear heels. Can my restaurant make me?

What to check

Say the handbook says women on the floor wear black heels and men wear black dress shoes (illustrative). Questions to ask about your own rule:

• Does it apply to everyone in the job? EEOC says an employer may set a dress code for all employees or for certain job categories.
• Is the burden equivalent for men and women? EEOC’s guidance says different rules for each sex can be lawful when they’re suitable, enforced equally, and equivalent in the standard or burden they impose.
• Is it enforced against only one sex? A rule on paper for everyone but enforced against only women (or only men) is the pattern EEOC calls disparate treatment.
• Is the outfit sexually provocative? EEOC says a requirement like that may by itself be evidence of sexual harassment.
• Do you need an exception? For a disability, a religious practice, or pregnancy, ask for one in writing.

Not tax or legal advice. Names and the dress code are made up. EEOC’s compliance manual is guidance, not law, and your state may have stricter rules.

Plain English

What EEOC actually says

EEOC’s guidance on sex-based dress codes is Section 619 of its Compliance Manual, “Grooming Standards.” It dates from 1981, and EEOC notes that it doesn’t have the force of law. It talks about uniforms, ties, skirts, slacks, and hair length. It doesn’t mention heels or shoes, so it doesn’t answer the heels question directly.

The general rule it gives: dress and grooming codes that are “suitable and applied equally” are not unlawful under Title VII. A dress policy that isn’t applied evenly to both sexes, or that reflects a stereotypical attitude toward one sex, violates Title VII.

Different rules for men and women

Different rules for each sex aren’t automatically illegal. EEOC’s example is men in neckties and women in skirts or dresses. That’s lawful as long as the rules are suitable, equally enforced, and “equivalent for men and women with respect to the standard or burden that they impose.” Another example: no shorts for women and no tank tops for men on a production line is an equivalent standard.

What EEOC found unlawful: requiring only women to wear uniforms because the employer thought women couldn’t dress appropriately on their own. EEOC pointed to both the extra cost to the women and the stereotype behind the rule.

Sexualized uniforms

EEOC says a uniform that isn’t similar to conventional clothes, such as short skirts or an outfit that may be considered provocative, can expose the worker to sexual comments and a hostile work environment. In some cases, it says, just requiring women to wear sexually provocative uniforms may itself be evidence of sexual harassment. If customers are making comments, see what to do when a customer harasses you.

Exceptions you can ask for

• Disability: if you ask for an exception to the dress code because of a disability, EEOC says the employer must modify the code or allow an exception unless that would be an undue hardship.
• Religion: the same rule applies to a dress code that conflicts with your religious practice.
• Pregnancy: under the Pregnant Workers Fairness Act, EEOC lists “changing a uniform or dress code” as a possible accommodation at employers with 15 or more employees. See pregnant server rights.

The safety side

OSHA’s restaurant safety eTool tells servers to wear non-slip shoes and to avoid sandals, open-toe shoes, high heels, and canvas shoes, because of slips on ice and spills. The eTool is advice, not a rule, but it’s a fair thing to point to when you ask for flats. More in slips, burns and cuts.

Where to ask

Title VII covers employers with 15 or more employees. EEOC says you have 180 days to file a charge, extended to 300 days where a state or local agency enforces a similar law. Call 1-800-669-4000. Your state may have stricter rules; DOL keeps a list of state labor offices.