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 hair.

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 African-American males.

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.

NLRA claims.

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.

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 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 suggestion.)

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 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.