25,000 euro fine upheld for a catering company that forced its female employees to wear a head covering

Forcing waitresses to wear a head covering or headband while waiters do not have to wear anything similar is not a matter of corporate image: it is direct discrimination on grounds of sex, punished as a very serious infringement. So has confirmed the Social Chamber of the High Court of Justice of the Valencian Community, which has ratified the 25,000 euro fine imposed on a Valencia catering company for that imposition.

The ruling, known this week, upholds the first-instance judgment handed down in May of last year, in which the trial judge found the unjustified imposition of the head covering on female employees proven and classified it as direct discrimination on grounds of sex, conduct sanctioned as a very serious offence in article 8.12 of the Law on Infringements and Sanctions in the Social Order (LISOS).

Exclusivity by sex without justification

The reasoning of the appellate chamber is forceful: in this case "there was exclusivity by sex in the imposition, there was no real equivalent for men in comparable conditions, nor was there an objective and proportionate justification linked to a legitimate, non-stereotyped and necessary purpose". With those three elements - exclusivity, absence of a male equivalent and lack of justification - the legal conclusion is tied up.

The company argued that there was no intention to discriminate. The Chamber replies with consolidated doctrine on direct discrimination: "In the face of these facts, the argument that there was no discriminatory intent is not decisive against a difference of treatment by sex found to be direct". Direct discrimination does not require intent to discriminate; the objective and unjustified difference of treatment between women and men in a comparable situation is enough. Against the appellate judgment, an appeal in cassation for the unification of doctrine lies before the Supreme Court.

The sanctioning framework: article 8.12 LISOS

The provision applied is article 8.12 of the consolidated text of the Law on Infringements and Sanctions in the Social Order, approved by Royal Legislative Decree 5/2000, which classifies as a very serious infringement "the unilateral decisions of the employer that involve unfavourable discrimination on grounds of age or that contain favourable or adverse discrimination in matters of remuneration, working hours, training, promotion and other working conditions, by reason of sex, origin, marital status, race, social condition, religious or political ideas, membership or non-membership of trade unions and their agreements, kinship ties with other workers in the company, language within the Spanish State, or by reason of physical, mental or sensory disabilities". The imposition of a garment only on female employees fits that type: a unilateral decision on working conditions with a difference of treatment by reason of sex.

The amount is explained by article 40 of the same law, which grades very serious infringements in employment relations into three degrees, with fines that at the middle degree cover the range in which the 25,000 euros imposed fall. The sanction originated with the Labour Inspectorate and has been judicially confirmed, which illustrates that inspectorate reports on asymmetric dress codes not only succeed, but hold up on appeal.

The gender perspective, an imperative canon

The case comes, moreover, at a moment of jurisprudential convergence. The Social Chamber of the High Court of Justice of the Canary Islands has just recalled, in the judgment on paid leave for medical appointments of Atlántica de Handling, that the gender perspective "is not an option for the one who judges, but an imperative legal mandate" supported by the Constitution, the Organic Law of the Judiciary, Organic Law 3/2007 for the effective equality of women and men, the CEDAW Convention and Law 15/2022, for equal treatment and non-discrimination. The Valencian judgment applies that same pattern: the objective difference of treatment is enough, and it is the company that must provide a legitimate, non-stereotyped and proportionate justification for the requirement.

The Valencian case follows in the wake of a growing line of case law against asymmetric dress codes. Image requirements - high heels, make-up, skirts, tight garments or, as here, hair accessories - are only valid if they are applied with real symmetry between male and female workforces and if they respond to a legitimate and proportionate purpose. The argumentative burden is on the company: invoking "brand image" or industry custom is not enough.

A consolidated line of case law against asymmetric dress codes

The Valencian ruling is not an isolated case, but the latest link in a line of case law that has been closely examining unequal image requirements. Heels, make-up, skirts or hair accessories demanded only of women have been falling in the courts and in the Labour Inspectorate following the same pattern: the company invokes brand image, but fails to accredit a legitimate purpose that does not rest on stereotypes, nor a real equivalent for the male workforce. The procedural key is the distribution of the argumentative burden: once the difference of treatment by sex is proven - something that in these cases is straightforward documentary evidence, the written protocol or the constant practice being enough - it is for the company to justify it, and "industry tradition" rarely passes that filter.

The case also offers a reading on the role of the Labour Inspectorate as a fast route of collective protection: unlike the individual claim, which requires a lawsuit and proof of damages, the sanctioning procedure allows correcting the practice for the whole workforce with an immediate deterrent cost. The judicial confirmation of the reports reinforces that route.

Practical reading for companies and firms

For human resources departments in hospitality, retail and services, the judgment is a warning with a concrete cost: uniform protocols must be audited garment by garment, and any requirement falling only on women needs an objective, non-stereotyped and proportionate justification that, in practice, rarely exists for aesthetic accessories. For employment lawyers, the case offers a useful scheme of proof and argumentation both in the sanctioning route - challenging or defending against Inspectorate reports - and in the individual claim for damages for discrimination.

The coincidence in time with the judgment of the High Court of the Canary Islands on paid leave for medical appointments justified with a private certificate reinforces the trend: the Social Chambers are applying the gender perspective as an imperative canon of interpretation, not as an argumentative option. In the same line you can consult our coverage of the Supreme Court doctrine on the return of compensation and reinstatement and the analysis of algorithmic discrimination in hiring according to the AEPD.

Sources

• Europa Press: "A 25,000 euro sanction is confirmed on a catering company for forcing female employees to wear a head covering"
• El País: "The 25,000 euro sanction on a catering company for forcing its female employees to wear a head covering is confirmed"