Lynchburg Business

Employee Dress Codes: What is Enforceable?

Issue: May 2010 by Joshua Dalrymple, Esq. in Inside The Magazine, Legal

At some point, most employers will be faced with the difficult task of creating and enforcing employee dress and grooming standards. These standards are usually focused on increasing productivity and presenting a certain image to clients or customers. In recent years, many employers have relaxed the dress code in an effort to make employees more comfortable and to build morale. However, that trend is beginning to change as employers have a harder time getting employees to use good judgment when attempting to adhere to the relaxed standard.

Legally, an employee dress code seems fairly simple. Employers have broad latitude in deciding how they want to portray their company to the public, and employee dress and grooming is no exception. However, discrimination claims occasionally arise from employee dress codes, so there are a few legal danger areas that the employer must avoid. Let’s focus on three: sex, race and religion.

Sexual Discrimination

These claims are generally unsuccessful because, in order to be successful, such discrimination must be based on the immutable characteristics of one sex or the other. In addition, the employer is allowed to have different standards for men and women as long as the standard is based on societal norms and does not unreasonably burden one gender or the other. For instance, a “business dress” policy may require women to wear pantyhose and the men to wear ties, but not the other way around.

An employer gets into trouble when the dress varies greatly from the societal norm or imposes a greater burden on one sex or the other. For instance, the court in Frank v. United Airlines ruled that the employer may not have a weight limit for female employees without a similar weight limit for male employees. Contrast that with the 9^th Circuit Court of Appeals ruling, in Jespersen v. Harrah’s, that an employer may require a female employee to wear makeup as long as there is an equal burden on male employees in the form of short nails, no makeup, trimmed hair, etc. The bottom line is that the burden on each gender does not have to match exactly, but it must be similar.

Race or National Origin Discrimination

Generally, these types of claims fail, but one such claim is worth noting: Policies that require an employee to be clean-shaven have been found to unreasonably burden African-American males. This unreasonable burden arises because of Pseudofolliculitis barbae, a skin condition aggravated by shaving, which occurs primarily in African-American males.

Note, however, that in March of this year, the 5^th Circuit Court of Appeals ruled that the skin condition alone is not enough. If the employer has a good reason to require shaving, such as safety or security, and the employer provides other alternative work, then the discrimination claim will fail. The court has recognized that reasonable accommodations can defeat such claims.

Religious Discrimination

Claims for religious discrimination usually arise in three areas: head covering, hairstyles and body art. The general rule is that an employer may not impose a dress code that infringes on a bona fide religious belief without making reasonable accommodations if the employee requests them. There is an exception to this rule if the accommodation would place an undue hardship on the employer. This is probably the most complicated area of law regarding dress code.

For example, Alamo Rent A Car had to pay $287,000 to a former Muslim employee because they would not let her wear a headscarf. They tried to claim that because of the 9/11 terrorist attacks, the headscarf would impose an undue hardship on their business. The court disagreed. However, Costco won a case in which the employee claimed she was a member of the “Church of Body Modification” and that she was required to display her facial jewelry at all times as part of her sincerely held religious beliefs.

So what is the difference in these cases? It’s fairly complicated, but the result often rests on the employer’s reasonable accommodations. If the employer has attempted to find some middle ground between their business interests and the employee’s religious expression, then the court will generally rule in favor of the employer.

For example, the employer may not refuse to hire anyone who has a tattoo, but they may require the employee to cover visible tattoos if they will adversely affect the employer’s public image. Covering tattoos is a reasonable accommodation. However, the employer must beware of having different standards for men and women when it comes to body art. The court has consistently ruled against the employer in those cases.

My first suggestion to employers in establishing a dress code is this: Write it down, provide it to the employees and enforce it. When you write the policy down, you should think about the following questions:

1. Can I assert a legitimate business rationale for the policy?
2. Does the policy create a burden on one gender or the other?
3. Does the policy create a burden for a certain race or national origin?
4. Does the policy infringe on a sincerely held religious belief?
5. Have reasonable accommodations been considered as an alternative to prohibitions?

I also suggest that if an employee challenges the employer’s policy or asks for an accommodation, then the employer should seek immediate legal advice before taking any action. If possible, the employer should then begin to develop an accommodation for the employee. Hopefully, the employer and employee can agree on something that will make sense for both parties.

The preceding is for informational purposes only and not intended to constitute specific legal advice or form an attorney/client relationship. Please seek the services of a licensed attorney for specific legal advice.