Workplace rules that deny fundamental aspects of personal autonomy are (in many states) and should be actionable invasions of privacy. Perhaps nowhere is the invasion more keenly felt than when an employer demands, under penalty of forfeiting one's livelihood, that one dress or alter one's physical appearance in a way that one finds offensive, degrading, inappropriate, or alien. Clothes and appearance are constitutive of how we see and feel about ourselves and how we construct ourselves for the rest of the world to see. Conventions of appearance for women and men, for racial, ethnic, and religious groups express and observe political and spiritual commitments that affect people at a deep psychological level. In this essay, I argue that the legal framework of autonomy privacy is a necessary supplement to the discrimination analysis that has dominated legal thinking for thirty-five years of challenges to workplace appearance requirements. Some appearance requirements should be legally suspect even when they do not discriminate on the basis of a protected status. A privacy analysis, in contrast to a discrimination analysis, is a legal theory that is available to anyone who is significantly oppressed by an unreasonable workplace dress code. Privacy analysis may thus be more resistant to charges of special treatment and the backlash that such charges can generate. From the employer's standpoint, privacy analysis allows more flexibility and nuance in distinguishing appearance regulations that are legal from those that are not. It might, for example, preserve the ability of an employer to require some dress conventions, including some that may reflect gender, religious, and other norms, while ruling out others. A privacy analysis would help courts distinguish between dress codes that humiliate and those that do not, as well as help a court understand that a dress code can be generally valid but cannot be enforced against a particular employee who might find a particular dress requirement exceptionally humiliating or offensive. Wholly apart from the effects of a privacy analysis on the outcome of litigation, I think it will also prompt a more thoughtful analysis by firms of whether or how they should attempt formally to regulate employee appearance and how to handle the employee who objects. A privacy analysis will prompt an employer to consider the strength of its justification for its policy, the degree of humiliation it will affect on particular workers, and whether the harm is necessary to achieve the benefit. A discrimination analysis, by contrast, invites an employer to adopt even a silly appearance regulation (e.g., women must wear make-up and nail polish) if the employer can convince itself that the regulation is not sex discrimination because it equally burdens men or because only certain women will object. Privacy analysis will thus better identify and accommodate the employer's interest in the appearance of its workforce with interests of various employees in being free from humiliating workplace requirements.
Catherine Fisk, Privacy, Power, and Humiliation at Work: Re-Examining Appearance Regulation as an Invasion of Privacy 1-44 (2006)