Friday, June 12, 2015

Accommodating Dress Codes

It’s hot outside, and that got us thinking about dress codes.  Over the past two weeks, the media has been fascinated with employer dress codes – from Walmart allowing denim to Mayo nixing pantyhose to Abercrombie’s “look policy."  Whether because of the warmer weather or an attempt to attract more workers, dress codes are changing, and the law generally approves.

Dress codes have long been a key indicator of professionalism.  Employers have required business suits and custom uniforms, sometimes enforcing their policies very rigidly.  This is slowly changing.  Now, it is more common to see things like those once-forbidden open-toed shoes, even in formal settings like law firms and on Wall Street.  There are also more uniform options, including skirts or jeans instead of pressed khakis. 

The law’s interest in employer dress codes has focused primarily on gender equality and whether or not the dress code allows for reasonable accommodation of disabilities or religious beliefs.

Courts have found that employer dress codes that placed a greater burden on one gender over another, or that require employees to fit particular gender stereotypes, violate anti-discrimination laws.

Today, employers must deal with the fact that religious beliefs may prescribe specific clothing, facial hair, or even piercings and tattoos as a part of religious expressions.  Individuals with allergies to certain fabrics or those with physical disabilities that limit their clothing options may also be hampered by rigid dress code policies.  Title VII and the Americans with Disabilities Act require employers to be flexible when they can, and to consider whether an individual’s religious expression or disability can be accommodated under dress codes.  Here are a few things to keep in mind when reviewing your dress code:

Dressing for success.
  • The law does not require employers to allow sloppy t-shirts and cutoff jeans with flip-flops, but it just might oblige an employer to allow for a nicely trimmed beard or headscarf when either is a religious custom.  If your dress code requires that employees look “professional,” keep in mind that there are successful professionals with a wide variety of dress and grooming standards.   No employer must allow for ZZ Top-like beards or naked lady tattoos, but some strict policies prohibiting facial hair, tattoos, or piercings could be challenged.
Offensive is still offensive.
  • The law does not require employers to tolerate risqué or offensive clothing, tattoos that include explicit language or images, or offensive body odor.  Employers may prohibit clothing, body art, or poor hygiene that is offensive to the reasonable person. 
Safety first. 
  • If your dress code is enacted for safety purposes, it is likely to be upheld when challenged in court.  Steel-toed shoes, a prohibition on loose clothing, or a requirement that workers wear safety glasses will likely be given great deference by the courts if they are genuinely related to worker safety.
The EEOC has published guidelines that address employer dress codes and reasonable accommodation and that include other helpful examples.

When analyzing whether failure to grant a religious accommodation violates the law, courts look for discriminatory motive.  Under the new decision from the U.S. Supreme Court, the law is violated if discrimination was a motivating factor in an employer’s decision not to provide an accommodation.  In EEOC v. Abercrombie & Fitch, the employer suspected an applicant needed a reasonable accommodation, but because of the rigidity of its “look” policy, the retailer denied a job to an otherwise qualified Muslim applicant who wore a hajib to her interview.  The trial court jury found a violation of Title VII, and the Supreme Court ultimately concurred.   

Posted by  Judy Langevin and Kate Bischoff