Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: I thought we would talk about makeup. I have makeup on today. I do not have makeup on every day. And what I want to tell Connecticut employees is: Can your employer force you to wear makeup every day to work if you are a woman? Or what about if you’re a man? Could they force you to not wear makeup to the office? What do you think?
Goodbaum: I think the answer to that is no, Amanda. Your employer probably can’t control whether you wear makeup. And the reason is that Connecticut law prohibits discrimination on the basis of gender identity or expression.
Connecticut defines gender identity or expression as “a person’s gender-related identity, appearance, or behavior,” and that’s true whether the person is cisgender or transgender or something else. Gender identity is often an issue that involves appearance. Think about how people select their clothing; how they wear their hair, whether it’s long or short; and yes, what kind of makeup, if any, they put on their faces. Makeup falls under the category of gender expression under Connecticut law, and so forcing a female employee to wear makeup or prohibiting a male employee from wearing makeup, I think, would be a pretty clear violation of the Connecticut anti-discrimination statute, the Connecticut Fair Employment Practices Act.
Now, for what it’s worth, Amanda, there are a couple of cases that suggest otherwise, arguably. There’s a 1976 U.S. Supreme Court case (Kelley v. Johnson) that says a man can be terminated for refusing to wear his hair neat and over his ears, even though women were allowed to wear their hair longer. And there’s a 1999 Connecticut Superior Court case that says that men can be terminated for wearing shorts to work, even if women are allowed to wear shorts to work.
But – and here’s two big caveats – these cases predate the 2011 addition of gender identity and expression to the Connecticut Fair Employment Practices Act as a category that’s protected under Connecticut law. And second, they also predate the U.S. Supreme Court’s 2020 recognition in a case called Bostock that discrimination based on sex stereotyping – that is, how men traditionally present themselves and how women traditionally present themselves – is sex discrimination and therefore illegal under federal law.
So, to bring it back to your question, Amanda, the answer is no, your employer can’t force you to wear makeup because you’re a woman, and your employer cannot force you not to wear makeup because you’re a man. As to whether your employer can impose other requirements on you about your appearance, well, maybe we’ll talk about that in another video?
DeMatteis: Looking forward to it. I already have a lot to say. Thanks for watching. We’ll see you next time.