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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

April 4, 2011

Challenge to dress code alleges gender discrimination

Challenge to dress code alleges gender discrimination
Matthews v City of New York, 270 AD2d 45

While claims of unlawful discrimination based on an employer’s dress code are not as common as they once were, dress code gender discrimination was one of the claims made by provisional caseworker, Makebra Matthews, after she was terminated from her job with the City’s Administration for Children’s Services [ACS].

Matthews, in an effort to regain her former position, alleged that the city was guilty of gender discrimination because it disapproved of her manner of dress and fired her. She contended that her dismissal resulted from ACS’s enforcing a dress code that allowed men, but not women, to wear sexually provocative or otherwise inappropriate clothes at work.

The city, on the other hand, argued while Matthews’ dress might be inappropriate for the workplace, the only reason it had dismissed her was because it was dissatisfied with the way she performed her assignments. Was this a mixed motive case?*

The Appellate Division ruled in favor of the city, commenting that Matthews had failed to make out a prima facie case of discrimination based on sex.

The court said that the city presented abundant evidence showing reasons for being dissatisfied with [Matthews] entirely apart from her manner of dress.

Dismissing Matthews’ complaint, the Appellate Division explained that [a]bsent a prima facie showing of discrimination, the mixed-motive analysis set out by the U.S. Supreme Court in Price Waterhouse v Hopkins is not applicable.

* See Price Waterhouse v Hopkins, 490 US 228

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