Dress Code Legal Issues: Workplace Dress Code Issues to Consider

Topics:

1. Careful policy writing

2. Discrimination based on sex

3. Racial and disability discrimination

4. Religious discrimination

5. NLRA

6. Tattoos and body piercings

7. Common sense tips for drafting and enforcing your dress code

If you are like many employers, you may mistakenly believe that anti-discrimination laws restrict your right to determine appropriate clothing in the workplace. In fact, you have a lot of discretion in what you can demand that your employees wear to work. Generally, a carefully written dress code that is applied consistently should not violate discrimination laws. However, this fact will not prevent employees from questioning your policy. This article, from our free HR Matters E-Tips e-newsletter, examines common legal challenges to dress codes and suggests ways to avoid problems.

Careful policy writing

You have probably faced an employee who complains that a dress code “violates my rights.” Some employees will even claim discrimination on the basis of sex, religion or race under Title VII of the Civil Rights Act. However, if a dress code is based on business needs and applied uniformly, it will generally not violate the civil rights of employees.

Claims for sex discrimination.

Claims of sex discrimination are generally unsuccessful unless the dress policy is not based on social customs, significantly differentiates between men and women, or places a greater burden on women. Therefore, a policy that requires managers to wear uniforms while male managers can wear “professional dress” can be discriminatory. However, dress requirements that reflect current social norms are generally maintained, even when they affect only one sex. For example, in a decision of the Eleventh Circuit Court of Appeals in Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998), the court upheld an employer’s policy that required only male employees to cut their long hair.

However, keep in mind that at least one state, California, prohibits employers from implementing a dress code that does not allow women to wear pants in the workplace. According to California Government Code Section 12947.5, it is an illegal work practice for an employer to prohibit an employee from wearing pants because of the employee’s gender. California law makes exceptions, so employees in certain occupations may be required to wear uniforms.

Claims for racial discrimination and disability.

Claims of racial discrimination can be even more difficult to prove, as the employee must demonstrate that the employer’s dress code has an uneven impact on a protected class of employees. A limited area in which racial claims have had some success is in challenges to “no beard” policies. Some courts have found that a policy requiring all male employees to shave well may discriminate if it is unsuitable for people with pseudofolliculitis of the beard (PFB), a skin condition aggravated by shaving that occurs almost exclusively among men. African American males.

No beard rules can also violate disability discrimination laws. Some courts have ruled that PFB is a disabling condition and therefore requires reasonable accommodation under state disability laws and the federal Rehabilitation Act (which prohibits federal contractors from discriminating in employment on the basis of disability).

Claims for religious discrimination.

Employees have been more successful in claiming that dress codes violate religious discrimination laws. These claims are likely if an employer is unwilling to allow an employee’s religious dress or appearance. For example, a policy can be discriminatory if it does not accommodate an employee’s religious need to cover their heads or wear a beard. However, if an employer can show that accommodation would be an undue hardship, such as the employee’s clothing creating a safety concern, they probably won’t have to allow the exception to their policy.

NLRA claims.

Dress code complaints can also be filed under the National Labor Relations Act (NLRA). To comply with the NLRA, employers, even in non-union workplaces, cannot universally prohibit the use of union badges. An employer may establish neutral policies that, when applied uniformly, prohibit employees from wearing certain garments that also have union insignia, such as T-shirts with union logos, if the policy prohibits all T-shirts. However, several courts have determined that employees have the right to wear union buttons and pins to work, unless the use of these items creates a safety hazard or, in the case of workers in public contact, employees must wear evenly without buttons and pins.

Tattoos and body piercings.

Many employees also mistakenly believe that they have the right to display tattoos and body piercings in the workplace. While tattoos and piercings may be examples of employee self-expression, they are generally not recognized as indications of religious or racial expression and are therefore not protected by federal discrimination laws. Consequently, as with most standards of appearance and grooming, you have wide latitude to set policies regarding tattoos and body piercings.

Common sense tips for drafting and enforcing your dress code

Here are some ideas to make sure your policy meets the legal restrictions described above:

1. Base the policy on business reasons. Explain your reasons in the policy so that employees understand the rationale for the restrictions. Common business-related reasons include maintaining the organization’s public image, promoting a productive work environment, or meeting health and safety standards.

2. Require employees to have a proper and well-groomed appearance. Even casual dress policies must specify what clothing is inappropriate (such as sweatshirts, shorts, and jeans) and any special requirements for employees dealing with the public.

3. Communicate the policy. Use employee manuals or memos to alert employees to the new policy, any revisions, and penalties for non-compliance. Also, explain the policy to job candidates.

4. Apply the dress code policy uniformly to all employees. This can avoid claims that the policy negatively affects women or minorities. However, you may need to make exceptions if required by law. (See the next suggestion).

5. Make reasonable accommodation when the situation requires an exception. Be prepared to accommodate requests for religious practices and disabilities, such as head covering and facial hair.

6. Apply consistent discipline for dress code violations. When disciplining violators, point out why your attraction is out of code and what they can do to comply.

More information: http://www.ppspublishers.com/articles/dress_code_policy.htm