When I first thought about writing a lighthearted piece on Debrahlee Lorenzana, she was still a little-known would-be sexual harassment litigant. A few days have passed, and she is now well on her way to being a worldwide phenomenon. It seems that every time you turn on the TV, there she is, talking about how Citibank fired her for being so sexy that the male bankers in her office couldn’t concentrate on their jobs. (Pictures from CBS News of Debrahlee Lorenzana)
Now I admit that over the years, I have thought that some of my employers’ expectations of what it meant to be a smart, professional woman were, shall I say, unfair and lacking a basis in reality. Some men, in particular, didn’t take me seriously because I was (or appeared to be) too young. Others jumped to the conclusion — based largely on my appearance — that I couldn’t hold my own intellectually against ego-driven lawyers such as themselves.
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How is any of this relevant to Debrahlee Lorenzana? The relevance lies in the fact that her lawsuit is, at its heart, about workplace perceptions. It’s about other people’s perceptions of her, how they allowed those perceptions to affect their expectations of her as an employee, and how she responded (or failed to respond) to those expectations.
So let’s assume that (1) Lorenzana’s clients perceived her as “sexy” and (2) her superiors believed her appearance in general — and the way she dressed in particular — impeded her ability to do her job well. What is a reasonable response to those facts? Should a person work on finding a way to minimize the physical characteristic that is interfering with her job performance? Or should she instead play up the very characteristic that is causing the negative perceptions?
For example, when I graduated from law school at the ripe old age of 25, I could have easily passed for a high school cheerleader. As a result, some of my clients did have a hard time taking my advice seriously. But I did not respond by dressing in a way that played up my youthful appearance. Instead, I worked on presenting a more mature image through clothes, grooming, and overall demeanor.
Yet Lorenzana appears to object to any suggestion that she adjust her wardrobe choices in an effort to minimize her “sexiness” problem. In fact, it is that very suggestion from Citibank that she seems to find the most objectionable.
Of course, Lorenzana’s claims may rely on the premise that Citibank was not concerned about how her appearance affected her ability to do her job but how it affected the ability of the men in her office to do their jobs. I suppose that is a legitimate distinction, but is it actionable? It’s hard to say based on the reports I have seen so far. I would think that if anyone had literally harassed Lorenzana, she would have announced the details of the misconduct in every interview she has given. Instead, she talks incessantly about how unfair it is for an employer to tell her not to wear sexy clothes.
And I’m sorry, but my response to that is, “So what?” According to Lorenzana, Citibank gave her a list of the types of clothing she was not allowed to wear to work, including turtlenecks, pencil skirts, and three-inch heels. Yet she apparently refused to follow their rules out of the belief that it was discriminatory for the company to ask her to change the way she dressed.
In my opinion, her position is not a strong one. Employers have the right to implement reasonable dress codes as long as they are nondiscriminatory. Assuming she wasn’t singled out for different dress-code requirements due to a protected characteristic, then Citibank is probably in the clear. The key phrase in that sentence is “due to a protected characteristic.” The last I checked, being sexy was not a protected class.
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Retaliation claims also iffy
What, you may ask, about Lorenzana’s retaliation claims? Although she alleges that she complained about sexual harassment before being fired, I haven’t been able to find any news articles explaining exactly what that harassment may have entailed. Again, it appears that she thinks the attempts to get her to dress more appropriately constituted harassment. If that truly is what she’s claiming, then she has a long row to hoe in my book.
Of course, if she did complain about sexual harassment before being terminated, it’s possible that she has a valid retaliation claim — even if the actions she complained about in the first place weren’t actual harassment. Let’s say she was upset that her boss asked her to wear less provocative work attire, and she complained about it to someone in HR. Perhaps she even said she was tired of being “harassed” because of her God-given sex appeal. Now let’s say that Citibank didn’t like her attitude and decided to fire her for refusing to adjust her work attire. Is that retaliation?
Again, I would argue that it is not. Even though retaliation claims can survive the fact that the initial harassment complaint lacked merit, there still must be some kind of a reasonable basis for the employee to have complained about harassment in the first place. Would a reasonable person think that being asked to dress more conservatively is harassment? Again, in the absence of a protected characteristic, my answer would be no.
Oh, and another interesting twist on the retaliation angle: According to the latest reports, Lorenzana’s current employer, JP Morgan Chase, is none too happy with her publicity-seeking ways. Her lawyers are already threatening to sue them for retaliation if they should fire her because of all the hubbub. It’s possible that such a lawsuit might pass muster, but only barely.
Even if JP Morgan’s reasons for terminating her are legitimate and nondiscriminatory, there is a high risk of it looking like retaliation. It is certainly a substantial enough concern that the company should examine all the issues very carefully with its lawyers before making a decision it might regret.
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Exactly how was she dressed? Have you seen any footage of how she was dressed on the job? Or are you simply accepting Citicorp’s word that she was dressed like a slut?
At the end of the first paragraph is a link to a slide show of pictures of her from CBS News. Here’s the link again.
http://www.cbsnews.com/2300-504083_162-10003635.html?tag=contentMain;contentBody
In regard to, “Employers have the right to implement reasonable dress codes as long as they are nondiscriminatory,” it’s reasonable to ask if the employer has ever imposed restrictions on the dress of males? If “sexy” is only implemented by the employer in regard to women, then a case can be made that a protected class (women) are involved. Something discomforting about this case is the photos of the woman involved, some of which seem purposely “sexy” in pose and dress. Why would her attorney promulgate these photos? At least one of the photos really was revealing of parts of the woman’s anatomy that most people would agree would be inappropriate in a staid office workplace. The overall feeling is of a publicity stunt. Or is this also a case of poor legal counsel? There is precedent, by the way, in sexual harassment and rape cases, that state that men are supposed to be able to restrain themselves, and that “provocative dress” is not a defense for the accused.
The problem seems to be with her bosom. The only attire I have issue with are her form fitting, low cut blouses, so the grey off-the-shoulder and the navy blue dress need to go. Other than that, I see nothing wrong with her attire.
I have a problem with the fact they are requiring her to dress a certain way and there is no mention if the rest of the let’s say “less sexy women” at Citicorp were required to dress accordingly. I would also think there would need to be some sort of requirement for those “sexy drop dead gorgeous” men. What type of dress code requirement did they come up with for them? And believe me in this day and time where health and grooming are marketed toward both sexes and not just females there are some gorgeous men out there that work workout hard and keep up their appearance with the lastest and greatest products available. If they intend to enforce a dress code they will need to enforce it to all. I agree there are some dress codes that can be enforced to all women that would be considered reasonable by anyones standards including the courts such as: No skirt or dress can be ? inches above the knee (we used to have this in school), no tops that bare the shoulders or shoulders must be covered, no visible cleavage (a little extreme but you get the message). I believe these would meet the reasonable standards test. For the men it is a little trickier but it can be done.
What we need to think about is if employers are allowed to go to the extreme Citicorp has done with Debrahlee Lorenzana where will it end. It’s a slippery slop that could lead into areas where employers can dictate if you can work for them using determinations such as obese vs thin, ugly vs attractive, etc. It’s all in one way or another a form of discrimination. It’s against the law!!
Deb, I hate to tell you but not all discrimination is illegal. Only discrimination based on a protected class. So in your example of obese v. thin – you really CAN discriminate against people for those characteristics. I’m not saying I agree with it, I’m just saying. So if Ms.Lorenzana cannot show her alleged harassment or discrimination was based on her sex (or some other class, but in this case sex), then its not prohibited. Even if they didn’t make other (ugly or fat or whatever) women abide by the same rules – still unlikely she would have a strong case. Her only real shot (while weak) is harassment and retaliation. Sure hope JP Morgan plans to keep her forever!
I got told to quit dressing “too provacatively” at work a long long time ago. I was offended at first, and though I was young, I was smart enough to realize I was only damaging my career by not taking a more professional approach to work. I quit wearing the snug tops and 4 inch pumps to work. I believe it gave me an advantage of being “looked at” for my accomplishments and not my attire and was far more rewarding to receive kudos for jobs well done, rather than salicious remarks from males at work. I saved the sexy outfits and shoes for going out at night or on the weekends! I’ve had a much more rewarding career because of it. I don’t think she is as smart as she is pretty. Too bad.
Marc,
I agree that the whole thing reeks of a publicity stunt. It sure has been a successful one if that is what they were going for!
Julie
Deb,
As Chris pointed out, not all discrimination is unlawful. Chris summarized my take on the situation quite well, actually.
🙂
Julie Athey
A couple of additional comments:
1) The questions about whether Citibank has a discriminatory dress code policy may be legitimate if the company has rules regarding “sexy” attire for women but not for men. That is unclear at this point. However, if they have a general policy regarding appropriate attire (which I am assuming they do) that they applied to her but not to less attractive women, I don’t think that provides a valid reason to sue. In general, that would be a type of “appearance discrimination,” which is not prohibited under federal law or in most states.
2) I haven’t heard Lorenzana say anything to the effect that male coworkers acted inappropriately. That was kind of the point … that she seemed to really only be upset about the efforts to get her to dress differently. Certainly if men were ogling her in the workplace and she complained about it, that would be different. She may or may not have a claim for harassment, but would probably have a pretty strong case of retaliation.
Julie Athey
First, she’s not all that! I think she is way too into herself.
Second, if her photos are any indication of her attitude, she would not have lasted long anyway.
Third, if she is disrupting her work environment, and it seems to be on purpose because she was notified of a problem and still refused to “help the situation”; then she should be fired or at least reprimanded for perpetuating a distraction.
I’m guessing that the posed pics were taken at a photography studio and not how she dressed at Citibank.
The lady has an attractive body, but the clothes at work aren’t particularly provocative. And there isn’t anything special about her face or hair – pretty normal, so I doubt she was fired based on being sexy.
Women like her are what give the female sex a bad name – don’t do your work, then find a way to sue when you lose your job.