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Address Dressing for Success

A rigid dress code policy can carry legal risks.

August 4, 2014
Related Topics: Legal Compliance, Discrimination and EEOC Compliance, The Latest, Legal
Dress Legal August 2014

From the length of an employee’s hair to the material of employees’ shoes, there are policies that cover a range of details that achieve a broader purpose in guiding employees about the expectations of the workplace. While there is no regulatory protocol for what dress-code policies should look like — so long as they do not discriminate based on an employee’s protected status — employers might not be aware of the following legal snags that could arise from implementing these policies.

Accommodation of Religious Beliefs: Employers may face significant liability if they refuse to engage in dialogue with an employee who requests an accommodation from the appearance policy on the basis of religion.

Federal law under Title VII of the Civil Rights Act of 1964 prohibits religion-based discrimination and requires employers to reasonably accommodate the religious beliefs of employees where they conflict with a workplace policy, unless it would pose an undue hardship on the employer.

For example, an employer recently settled charges of religious discrimination with the U.S. Equal Employment Opportunity Commission for refusing to make an exception to its “no-beard policy” for a Sikh applicant whose religion required that he wear a beard. The stated intent of the policy — to avoid “trendy styles” — proved no defense for the employer’s failure to offer any accommodation to the otherwise qualified applicant.

A rigid dress-code policy carries legal risk, so employers should adopt a flexible approach in drafting and applying the policy. Proper training on issues arising from dress-code policies — including cultural competency training on religious diversity — can minimize the risk by preparing management to recognize and address requests for religious accommodations.

Accommodation of Disabilities. Likewise, an employer’s failure to account for employees’ disabilities in the implementation of a dress code may lead to costly liabilities.

The Americans with Disabilities Act requires employers to reasonably accommodate the disability of a qualified employee or applicant, unless that would pose an undue hardship.

Consider, for example, an employee who suffers from Parkinson’s disease that makes it difficult for that person to button the work uniform. Accommodating this employee may be as simple as ordering a shirt with a zipper or Velcro closures from the same uniform vendor that supplied the button-down shirt.

Requests for accommodation of the dress-code policy might not always be so simple, and what might be feasible for one work environment might not be feasible for another. Employers should have a process in place for documenting and responding to disability-based accommodation requests. Especially where an employer cannot make an accommodation without undue hardship, it is critical for an employer to document its decision-making and the legitimate business reasons that informed the decision.

Gender and Gender Identity. Appearance policies that differentiate based on gender are not necessarily unlawful, but may impose legal risks where they place a greater burden on employees of one gender or where they interfere with an individual’s preferred gender expression.

Federal law under Title VII prohibits discrimination on the basis of sex, and since the EEOC’s pivotal ruling in Macy v. Holder, sex-based discrimination includes discrimination based on an individual’s transgender status or atypical gender expression. Macy involved a transgender woman who presented as a man when applying for a ballistics technician position, but was denied the job after informing the employer that she was transitioning her gender expression. Where an employer changes its mind about a candidate solely based on notions of how a biological man or woman should act or appear, the employer faces liability for discrimination based on sex, sex stereotyping and gender identity.

Employers that maintain gender-based dress codes should be prepared to articulate a legitimate business justification for the different treatment. Reasons such as “customer preference” or maintaining a “family-friendly” environment often will not suffice.

Some employers have adopted gender-neutral policies to avoid these concerns, but removing gender terminology does not necessarily eliminate the risks. Training management on issues of sex stereotyping and gender identity is key to successful implementation of not only dress codes, but also a range of workplace policies.

Protected and Concerted Activities. Dress-code policies might also create legal risks under the National Labor Relations Act, which protects employees’ rights to engage in “protected, concerted activities” to act together to address conditions at work, with or without a union.

For example, a dress-code policy that banned words or images derogatory to the company was found unlawful because it would reasonably chill employees from engaging in protected, concerted activities. Similarly, a policy that only permitted employees to wear hats with the company’s logo was ruled unlawful because it impinged on employees’ rights to wear union insignia.

Ultimately, any policy that could be interpreted as inhibiting employees’ ability to express opinions about working conditions is ripe for scrutiny under the NLRA. As these examples illustrate, a “one-size-fits-all” dress code will not fit any workplace. A rigid policy based on a static view of the workforce may seem simple to administer, but could also expose employers to significant legal risks. Building in flexibility will enable an employer to account for the rights and obligations afforded under applicable law.

Flexibility also tends to enhance employee morale, thus maximizing compliance with the policy.

In terms of drafting, the policy should explain, in clear terms, the rules, the business reasons behind the rules, the consequences of violating the rules, and examples of compliant and noncompliant attire. Employers may also consider adding a reference in the policy regarding the potential availability of accommodations.

Training is critical, not just in terms of the parameters of the policy, but also on cultural competency, avoiding discrimination and retaliation in enforcing the policy, and recognizing and addressing requests for accommodations.

With these considerations in mind, a dress-code policy can accomplish the employer’s legitimate business needs while also maintaining an inclusive work environment for all.

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