Legal Dress Code Issues – Workplace Dress Code Issues to Consider

Topics:

1. Careful policy writing

2. Gender discrimination

3. Discrimination Based on Race and Disability

4. Religious discrimination

5.NLRA

6. Tattoos and body piercings

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

If you’re like many employers, you may mistakenly believe that anti-discrimination laws restrict your right to determine appropriate attire for the workplace. In fact, you actually have a lot of discretion in what you can require your employees to wear to work. In general, a carefully crafted dress code that is consistently enforced should not violate anti-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 you can avoid trouble.

Careful policy writing

You’ve probably come across an employee who complains that a dress code “infringes on my rights.” Some employees even go so far as to allege discrimination based on sex, religion, or race under Title VII of the Civil Rights Act. However, if a dress code is based on business necessity and applied uniformly, it generally will not violate the civil rights of employees.

Claims of sexual discrimination.

Sex discrimination claims are generally unsuccessful unless the dress policy is not based on social mores, differentiates significantly between men and women, or places a greater burden on women. Therefore, a policy that requires female managers to wear uniforms while male managers may wear “professional dress” may be discriminatory. However, dress requirements that reflect current social norms are generally maintained, even when affecting only one sex. For example, in a decision by 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 requiring only male employees to cut long hair.

Be aware, however, 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 employment practice for an employer to prohibit an employee from wearing pants because of the employee’s sex. California law makes exceptions, so employees in certain occupations may be required to wear uniforms.

Race and Disability Discrimination Claims.

Racial discrimination claims can be even more difficult to prove, as the employee must show that the employer’s dress code has a different impact on a protected class of employees. One limited area where 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 be clean shaven may discriminate if it does not accommodate people with pseudofolliculitis barbae (PFB), a skin condition aggravated by shaving that occurs almost exclusively among African American men.

Beard-free rules may 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 of 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 may be discriminatory if it does not accommodate an employee’s religious need to wear a head covering or beard. However, if an employer can show that the accommodation would be an undue hardship, such as if the employee’s clothing created a safety problem, he probably won’t have to allow the exception to her policy.

NLRA claims.

Dress code complaints can also be filed under the National Industrial Relations Act (NLRA). To comply with the NLRA, employers, even in non-union workplaces, cannot universally prohibit the wearing of union insignia. An employer may establish neutral policies that, when applied uniformly, prohibit employees from wearing certain clothing that also has union insignia, such as T-shirts with union logos, if the policy prohibits all T-shirts. However, various courts have held that employees have the right to wear union pins and badges on the job, unless wearing these items creates a safety hazard or, in the case of public contact workers, Employees are constantly required to wear uniforms without buttons and pins.

Tattoos and Body Piercing.

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

Common sense tips for writing and enforcing your dress code

Here are some ideas to make sure your policy complies with the legal restrictions outlined above:

1. Base the policy on commercial reasons. Explain your reasons in the policy so employees understand the logic behind 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 should 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 handbooks or memos to alert employees to the new policy, any revisions, and penalties for noncompliance. 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 have to make exceptions if required by law. (See next suggestion).

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

6. Apply consistent discipline for dress code violations. When you penalize violators, point out why your attraction is not up to code and what they can do to comply.

Learn more: http://www.ppspublishers.com/articles/dress_code_policy.htm