Spring is here, and with the weather heating up, employers may become increasingly confronted with dress code issues.  For example, with warmer weather, employees may be dressing more casually, or wearing clothing that otherwise does not comply with a dress code policy (such as attire that covers tattoos).  An employer's ability to have a dress code that is business-related, promotes the company's image needs, or comports with customers' wishes is important in today's competitive business environment.  However, claims by employees for harassment and discrimination frequently arise with regard to dress codes.  Therefore, employers have to balance the need to have a regulated employee appearance with the individual rights of each employee which are protected under the law. 

Accordingly, employers may establish dress code policies for all of their employees or just limited to certain departments in order to serve the company's legitimate business needs, including safety concerns, as long as those policies do not violate Title VII or the NMHRA.  Courts have held that employers are required to apply dress codes evenly, to make reasonable accommodations for disabilities or religious practices, so long as those accommodations do not create an "undue hardship on the conduct of the employer's business."

Currently, the United States Supreme Court is considering a case which will further define what is required by an employer with regard to making a reasonable accommodation for its dress code policy.  In EEOC v. Abercrombie & Fitch Stores, Inc., Samantha Elauf claimed that she was not hired at Abercrombie & Fitch, because she wore a hijab (a Muslim headscarf) at her interview.  Abercrombie & Fitch has strict requirements for the appearance of its employees, including the prohibition of headscarves.  In finding for Abercrombie & Fitch, the Tenth Circuit found that Elauf did not tell the Company that she wore her headscarf for religious purposes, and she did not request any accommodation for it.  Therefore, Abercrombie & Fitch had no duty to provide her with an accommodation. The Supreme Court is reviewing that decision, and a central question before it is what burdens employers and employees have with regard to reasonable accommodations to a company's dress code policy.

At the center of the Abercrombie & Fitch case, and other cases like it, is content of the employer's dress code policy, and how it is used.  Therefore, a well-written and consistently-applied dress code policy is important as it clearly establishes the rules for employees and managers, which reduces potential liability, while promoting the employer's image. 

Some best practices regarding workplace dress code polices are that:

  • Dress code policies should be clear, well-written, and up to date.
  • A dress code policy should be job or safety related (meaning it impacts the business) and not simply based on the employer's preferences.
  • Dress codes should be explained to managers and employees.
  • The consequences for violation of the dress code should be explained to managers and employees.
  • Managers should be trained to consistently and evenly apply the dress code policies to both men and women, and amongst other members of protected classes.
  • Managers should understand that accommodations or exemptions from the dress code policy may be legally required and that they should to seek guidance from Human Resources or legal counsel when making or considering an accommodation.