Warring over wardrobe choices: Employee vs. employer

By Lily Garcia
Special to The Washington Post
Thursday, November 19, 2009 12:00 AM

I am a 30-something woman in a large company with both male and female employees but a male supervisor. I am constantly being critiqued for my choice of clothing. I dress smartly. I am average weight and tall and dress age appropriate. I wear pants/capris mostly (a casual southern office) and sometimes a skirt but nothing above the knee. I wear colors that match from head to toe. I coordinate in style and in all stuff in style and dress modestly: no cleavage, jackets, no tight fit and definitely no open-toe shoes. So what's the beef? I have a boss who constantly tells me, in front of everyone, that I am too bright or he hates the color or even so much as said I looked like a bum on the street or a bag lady waiting on a bus (I was wearing Anne Klein at the time!). I have been told not to wear a specific color because the boss hates it (black!) so that shot a lot of my winter wardrobe. I dress smart and am well liked, but this boss is driving me crazy with snide remarks and the like. I have seen his wife: Dowdy is an understatement. She makes all her own sack dresses and looks more like she stepped off the farm. I am not like that and never will be. I dress classy, not tarty, but I am starting to see this could affect my performance evaluation. My question: Can comments like this constitute harassment, and should I go ahead and contact my attorney? HR is of no use . They want it to stay in house. Help!

Upon reading your question, I cannot help but recall the facts of the landmark Supreme Court sex discrimination case of Price Waterhouse v. Hopkins. The lawsuit that eventually led to this decision was brought by Ann Hopkins, a female consultant for the "Big Eight" accounting firm Price Waterhouse, who, after being denied a place in the partnership, was advised that she should walk and talk more femininely, wear makeup and style her hair. Hopkins left the firm to become a federal government consultant and she sued, alleging constructive discharge and sex discrimination in the form of gender stereotypes regarding her appearance and demeanor. The Supreme Court ruled, among other things, that holding women accountable for adhering to sex-based stereotypes could constitute a violation of Title VII of the Civil Rights Act of 1964. After more than six years of litigation, Hopkins was awarded back pay, attorney's fees and a place in the firm's partnership.

The Civil Rights Act of 1991 was passed partly in response to the Supreme Court's decision in the Price Waterhouse case, which also held that an employer can avoid liability for discrimination if it can demonstrate that it would have made the same personnel decision despite the discriminatory factor. As the law stands now, it is illegal for an employer to consider an impermissible factor in a personnel decision, even if it can demonstrate that it would have made the same decision regardless.

For the moment, let's put aside the question of whether your boss' comments regarding your appearance constitute illegal sex discrimination or harassment. No matter how you choose to characterize your boss' critique of your appearance, there can be little doubt in the mind of anyone who reads your account that his comments are highly inappropriate. If your boss had legitimate concerns about the professionalism of your manner of dress, then he should address these in private. Picking on you in public for your choice of clothing colors or styles is just plain mean. Dare I say, misogynistic?

To make a claim of sexual harassment, you must demonstrate that your supervisor made unwelcome sex-based comments that were severe or pervasive enough to make your workplace intolerable. I am tempted to wonder what could motivate a male supervisor to denigrate his female employee in this manner. He might actually think that he is being funny. He might be a control freak who has made you the focus of his obsession. Or he could just be acting out a schoolyard crush like a prepubescent boy who is deliberately unkind to the object of his affection.

In the eyes of the law, however, it does not really matter what your supervisor thinks. What matters is how this is making you feel. If you are concerned that your failure to conform to your supervisor's idea of what is attractive may affect your performance appraisal, and if you are wondering whether you should quit your job, then the impact of your supervisor's behavior on you is serious. It is also clear that you do not welcome your supervisor's remarks. And you can credibly argue that his comments, insofar as they relate to his perception of femininity, are based on sex. I am not at liberty to offer legal advice in this forum, but I can confidently tell you, based upon the information you have shared with me, that consulting an employment discrimination lawyer regarding your case would not be a waste of time.

If you do decide to seek the advice of an attorney, do keep in mind that litigation is rarely the best solution to an employment dispute. The process is costly, time consuming and emotionally exhausting. It would be far preferable for you to be able to mobilize your human resources department to either stop your supervisor's inappropriate conduct or place you in a comparable job that does not report to him. A good lawyer will understand this and try to help you negotiate an acceptable outcome without ever having to file a formal claim.

Lily Garcia has offered employment law and human resources advice to companies of all sizes for more than 10 years. To submit a question, e-mail HRadvice@washingtonpost.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.

© 2009 Washingtonpost.Newsweek Interactive