If you are like many employers, you may mistakenly believe that
discrimination laws restrict your right to determine appropriate workplace
dress. In fact, you actually have a lot of discretion in what you can
require your employees to wear to work. Generally, a
dress code that is applied consistently should not violate discrimination
laws. However, this fact will not stop employees from questioning your
policy. This article examines common legal challenges to dress codes and
suggests ways you can avoid problems.
Careful Drafting, Application Thwart Legal Challenges
You probably have been faced with an employee who complains that a
dress code "violates my rights." Some employees will even go so
far as to allege 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 generally will not violate
employee civil rights.
Sex discrimination claims.
Sex discrimination claims typically are not successful unless the dress
policy has no basis in social customs, differentiates significantly
between men and women, or imposes a greater burden on women. Thus, a
policy that requires female managers to wear uniforms while male managers
are allowed to wear "professional dress" may be discriminatory.
However, dress requirements that reflect current social norms generally
are upheld, even when they affect 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 that required only male employees to cut their long
Be aware, though, 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 Section 12947.5 of the California
Government Code, it is an unlawful employment practice for an employer to
prohibit an employee from wearing pants because of the sex of the
employee. The California law does make exceptions so employees in certain
occupations can be required to wear uniforms.
Race and disability discrimination claims.
Race discrimination claims can be even more difficult to prove since
the employee must show that the employer’s dress code has a disparate
impact on a protected class of employees. One limited area where race
claims have had some success is in challenges to "no beard"
policies. A few courts have determined that a policy that requires all
male employees to be clean-shaven may discriminate if it does not
accommodate individuals with pseudofolliculitis barbae (PFB), a skin
condition aggravated by shaving that occurs almost exclusively among
No-beard rules also may violate disability discrimination laws. A few
courts have ruled that PFB is a disabling condition and thus requires
reasonable accommodation under state disability laws and the federal
Rehabilitation Act (which prohibits federal contractors from
discriminating in employment based on disability).
Religious discrimination claims.
Employees have had more success claiming
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 cover his head or wear a beard. However, if an employer
can show that the accommodation would be an undue hardship, such as if the
employee’s dress created a safety concern, it probably does not have to
allow the exception to its policy.
Dress code claims also may be filed under the National Labor Relations
Act (NLRA). To comply with the NLRA, employers, even in nonunion
workplaces, may not universally ban the wearing of union insignia. An
employer may set neutral policies that, when uniformly enforced, prohibit
employees from wearing certain items of clothing that also have union
insignias on them, 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 wearing of these items creates a safety hazard or, in the case of
workers with public contact, the employees consistently are required to
wear uniforms without buttons and pins.
Tattoos and body piercings.
Many employees also mistakenly believe that they have a right to show
tattoos and body piercings in the workplace. While tattoos and piercings
may be examples of employee self-expression, they generally are not
recognized as indications of religious or racial expression and,
therefore, are not protected under federal discrimination laws.
Accordingly, as with most personal appearance and grooming standards, you
have wide latitude to set policy regarding tattoos and body piercings.
FREE DOWNLOAD - DRESS CODE POLICY
Try a free sample of the valuable information our Personnel Policy
Manual service subscribers receive. You will get a carefully written and
legally reviewed model Dress Code Policy (called "Personal Appearance
of Employees"), complete with all the extensive management and legal
background support you need.
Common Sense Tips for Drafting and Enforcing Your Dress Code
Here are some ideas for ensuring that your policy complies with the
legal restrictions described above:
1. Base the dress code policy on business-related reasons. Explain your reasons in
the policy so employees understand the rationale behind the restrictions.
Common business-related reasons include maintaining the organization’s
public image, promoting a productive work environment, or complying with
health and safety standards.
2. Require employees to have an appropriate, well-groomed appearance.
Even casual dress policies should specify what clothing is inappropriate
(such as sweatsuits, shorts, and jeans) and any special requirements for
employees who deal with the public.
3. Communicate the policy. Use employee handbooks or memos to alert
employees to the new policy, any revisions, and the penalties for
noncompliance. In addition, explain the policy to job candidates.
4. Apply the dress code policy uniformly to all employees. This can
prevent claims that the policy adversely affects women or minorities.
However, you may have to make exceptions if required by law. (See next
5. Make reasonable accommodation 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
disciplining violators, point out why their attire does not comply with
the code and what they can do to comply.
Subscribers to the
Personnel Policy Manual System and HR Policy Answers on CD
also can find more information creating dress codes, including a model
policy, in Personal Appearance of Employees, Chapter 802.