Can Your Employer Require You to Wear High Heels?

Many of you are likely thinking this is a trick question. Surely no employer can insist that its female workers don stilettos in order to keep their jobs, right? Well, the answer, at least here in the United States, is a bit complicated. Title VII, the federal law that bans sex discrimination in the workplace, long has been interpreted by federal courts to permit “separate but equal” dress codes for men and women, even though those grooming codes are facially discriminatory. Courts have held that employers, for example, may insist that their male employees have short hair, while women may wear theirs long, or even that women, but not men, wear make up. One federal appellate court, less than a year ago, reaffirmed its position that only if the distinction made in a grooming code is based on an “immutable characteristic” does it run afoul of the law prohibiting sex discrimination. Wow.

So where does that leave high heels?   The question of requiring employees to wear high heels was on the front burner in both Great Britain and British Columbia earlier this year. Nicola Tharpe, a British receptionist who had been sent home from work for failing to wear high heels, started a petition urging Parliament to pass a law that would prevent women from being required to wear high heels at work. And although her petition gained enough signatures to earn consideration by Parliament, that body ultimately refused to enact the law she sought, citing an anti-discrimination law already on the books that says, essentially, that dress code requirements must be “equivalent” for men and women. Of course, that begs the question of what is “equivalent.” The province of British Columbia, however, this spring outlawed mandatory high heel policies, citing safety concerns; that law followed a well- publicized incident involving a restaurant worker whose high heels had resulted in bleeding feet and a lost toenail. 

In the U.S., where “separate but equal” is the prevailing norm, a strong case can be made that there is no male equivalent for the high heel shoe. Thus, an employer requiring women, but not men, to don this often painful and ankle sprain inducing form of footwear presumably would be facing an uphill battle in most areas of this country. Moreover, some state and local laws may be more employee friendly when it comes to enforcing workplace dress codes.

Of course, whether they can or not, most employers do not require their female employees to wear high heels. And yet, while the number is declining, a not insignificant number of women wear them to work. Why? There’s an interesting piece in the Huffington Post asking this question, why are powerful women icons always wearing heals? It notes that while Hillary Clinton eschewed heels in favor of flats, in today’s popular culture, high heels are the norm when portraying powerful women. Contrast that, it says, with pop culture working women icons of earlier decades (Mary Richards, Murphy Brown), who rarely wore heels. Why this shift in the popular culture? Do high heels detract from moving up in today’s workplace, or are they a reflection of authority and power?   Do heels place women at men’s level, or do they signify a desire to appeal to the male gaze? Or is heel choice, like handbag choice, merely a reflection of personal taste, style and confidence, which are almost always good things to bring with you to the workplace.