Air stewardesses in pants! Dress codes and Sex Discrimination in the workplace

We will soon see air stewardesses wearing pants on planes! According to recent news report, the Hong Kong Dragon Airlines Flight Attendants Association has raised its request for female flight attendants to wear trousers at work. Cathay Pacific agrees to change the 70-plus-year-old skirt-only policy and endorses designs of uniform trousers for female flight attendants for both Cathay Pacific and Cathay Dragon in the next round of regular uniform restyling which will take place in 2021.

An employer imposing any gender-specific dress codes at work is likely to raise a discrimination issue. Under the Sex Discrimination Ordinance (“SDO”), a person discriminates against a woman if on the ground of sex he treats her less favourably than he treats or would treat a man. In other words, if a requirement on clothing only applies to one gender but not the other, such requirement is likely to be considered as discriminatory.  The Equal Opportunities Commission (“EOC”) has indicated in its “Code of Practice on Employment under the Sex Discrimination Ordinance” that while there are no provisions in the SDO that specify sex discrimination in relation to dress codes, employers should take into account the following when developing dress codes:

• Policies should only prescribe a particular form of dress if it qualifies as a necessary and reasonable requirement of the job;
• Policies should be imposed on both sexes in an even-handed manner;
• Policies should not subject one sex to any unfavourable treatment or detrimental effect;
• Employers should consult their employees where practicable; and
• Policies should be reviewed periodically to take into account changing social conventions.

In 2010, an action was taken by the EOC on behalf of a teacher against her school and principal, claiming that the secondary school’s dress code, and the principal’s repeated and public criticisms of her for not wearing a dress or a skirt, constituted discrimination. In particular, it was claimed that there was no such dress code for male teachers apart from a ban on T-shirts and jeans. The school subsequently agreed to settle the matter by giving an apology and monetary compensation to the teacher, and undertook to review its dress code.

In the U.K case of The Committee of Stoke on Trent Community Transport v Cresswell [1993] EAT/359/93, a female office clerk was dismissed for wearing trousers at work. While her employer supplied uniforms to its drivers, who were all male, they wore uniforms only sparingly and were able to dress as they liked without hindrance. There was no record of any disciplinary action ever being taken against the male drivers for their attire. The UK Employment Appeal Tribunal ruled that such dismissal amounted to direct discrimination under the Sex Discrimination Act (now the Equality Act), which contains comparable provisions to the SDO.

Employers are therefore reminded to follow the guidance of the EOC and seek professional legal advice where necessary.  In the meantime, we can look out for trouser-clad female flight attendants serving us on planes in just a few years from now.

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