For many, summer is a more laid-back time of year and rightfully so. There are summer holidays for people to enjoy, vacations, long weekends, lazy days outside taking advantage of the nice weather and, in the employment law area, many lawmaking and law-enforcing bodies are less active or not in session. Sometimes this laid-back attitude seeps into the workplace. Specifically, during these hot, sticky summer months employers often notice employees start taking a relaxed approach the office dress code. It makes sense; the rising temperatures make some people reach for shorter hemlines or lighter-weight fabrics. Many times this can be done while complying with the office dress code, but almost every employer has that one employee who shows up at work wearing something that runs afoul. Sometimes it is an employee in flip flops… an employee opting for a higher-than-allowed hemline … or an employee who takes the lighter-fabric idea a little too far and ends up flashing the office in a see- through ensemble. Whatever the case, most workplaces have at least one employee who skates along the edges of the employer’s dress code policy. The questions become: (1) what can an employer include in an office dress code, and (2) how can employers ensure employees comply with it. The answer to the first question is, yes, employers can implement dress code policies that prohibit employees from wearing too-casual attire such as jeans, shorts or flip flops. I am sure a creative plaintiff will eventually argue he has a religious right to wear flip flops to work, but we have yet to see that argument play out in the courts. As to the second issue, the key is in making sure employees understand the dress code policy. When it comes to dress code policies, employers should be clear – crystal clear. A clear, understandable policy is key to successful implementation, enforcement, and adherence. It is fine to note that some clothing is strictly off limits, e.g., flip flops, shorts, low-cut shirts, blue jeans, see- through attire. Other clothing may be permissible as long as it meets certain criteria,e.g., skirts have to be a certain length, but it is crucial that employers provide objective standards. For example, employers seeking to regulate skirt length should provide a specific length that is acceptable. In line with being specific, while flip flops may not be appropriate, other types of open-toed shoes may be. If this is the case, be specific. Consider a policy that prohibits flip flops or thong-type sandals, but permits closed- toed sandals or clogs. The next step in ensuring employees comply with the office dress code is making sure they know about it. Here, communication is essential, and employers must make sure they communicate dress code standards in a clear and understandable manner. It is also important that all members of the executive staff and management strictly adhere to the dress code. This lead-by-example approach is crucial. Lastly, employers need to enforce the policies fairly and consistently. If an employee disobeys the dress code, they should be sent home to change, not given a free pass for the day. Employers must watch out for discrimination issues in drafting and enforcing dress code and grooming policies This may all seem relatively easy, but for employers, it is not enough to identify and address dress code violations in order to maintain a professional workplace all year round, employers must also be aware of the various discrimination laws when implementing and enforcing dress or grooming codes, because discrimination claims occasionally arise out of dress or grooming codes and can be related to gender, religion, race or national origin. The employment laws themselves are pretty sparse in detailing what an employer can do or say about an employee’s dress. Accordingly, employers have some flexibility when writing a dress code or grooming policy. When doing so, employers should strive to draft a dress code policy that is business-related, that promotes the company’s image needs, and that addresses safety concerns (if affected by attire or grooming). Here are some claims employers should watch out for, and while many claims are ultimately unsuccessful, they nevertheless subject an employer to litigation … and with that, expense. Gender discrimination claims Gender discrimination claims tend to be dress-code based, and they are typically unsuccessful. Both the Equal Employment Opportunity Commission (“EEOC”) and the courts have held that an employer may establish different dress codes for men and women in order to create a professional atmosphere. These types of professional dress codes, e.g., men must wear ties, typically do not violate the discrimination laws. The issue for employers tends to arise when the dress code is not based on social norms and tends to put a greater burden on women. In Jespersen v. Harrah’s Operating Company, 444 F.3d 1104 (9th Cir. 2006) (en banc), a female bartender at a Harrah’s Casino was fired for refusing to follow the company’s “Personal Best” grooming and hygiene policy. The policy required all employees wear white, button- down shirts, black pants, black vests and ties at all times. Men were required to keep their hair and fingernails short and well-groomed, and women had to follow specific standards with regard to painting their fingernails, styling their hair, and wearing make- up, which included wearing foundation, mascara, blush and lipstick. Jespersen refused the makeup requirements on grounds that they offended her and conflicted with her self-image. She was fired for violating the policy and filed a Title VII suit claiming gender discrimination. The trial court granted summary judgment in favor of Harrah’s, and Jespersen appealed. On appeal, the appellate court explained that it is okay for an employer to have different dress and/or grooming requirements for men and women, so long the requirements do not place an unfairly heavy burden on either gender. While Jespersen argued that Harrah’s makeup requirement imposed a greater workload on women than the grooming standards did on men, she did not present any proof, and the court refused to assume that Harrah’s make-up requirement imposed a greater burden on women. The court held that without any proof, it could not assume that Harrah’s makeup requirement placed an undue burden on female employees, so Jespersen’s Title VII discrimination claims were dismissed. In a more recent case, Amber Creed a/k/a/ Christopher Creed v. Family Express Corp., No. 3:06-CV-465, (N.D. Ind. 2009), Amber Creed was born a male, but suffers from gender identity disorder. She was hired by Family Express to work as a sales associate. When she interviewed, she had a masculine demeanor and appearance, but after getting the job, she began to assume a more feminine look. She began to wear her hair longer and in a more feminine style and to wear nail polish and make-up. Like other employees, she wore the required unisex uniform – a polo shirt and slacks. Although her job performance was good, customers started complaining about her more feminine appearance. She was told by management that she could no longer present herself in a feminine manner at work and that she would need to report to work as a male. She was told that all employees were required to follow the company’s dress and grooming code, both the general portions and the sex-specific ones. At Family Express, men were required to maintain “neat and conservative hair that is kept above the collar” and forbidden from wearing make-up or jewelry. Employees were told the code was a “non-negotiable part of employment.”. Creed refused and she was fired. She sued alleging she lost her job because the company perceived her “to be a man who did not conform with gender stereotypes associated with men in our society.” The Creed court articulated the correct standard under Title VII: Employment actions taken “because of sex” are unlawful. It also correctly cited Price Waterhouse for the proposition that “Title VII doesn’t allow an employer to treat employees adversely because their appearance or conduct doesn’t conform to stereotypical gender roles.” The court then went on and rejected Creed’s claim of unlawful sex stereotyping and held that penalizing Creed for failing “to embody sexual stereotypes” is a prohibited purpose, but penalizing her for “breach of the grooming policy” is a legitimate one. It held that no reasonable jury could find that Creed was the victim of illegal stereotyping, since, apart from her noncompliance with the grooming policy, there was no proof that the employer acted “because of sex.” In other words, there was no discrimination if the alleged discriminatory policy at issue was embodied in a formal dress and grooming code, with requirements that did not impose unequal burdens on men and women. The state of the law governing sex-based “grooming standards” was well summarized in Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249, 1252 (8th Cir. 1975), where the court held that “minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of § 2000e-2.” Title VII “was never intended to interfere in the promulgation and enforcement of personal appearance regulations by private employers.” Id. at 1251-52. The rationale for this conclusion is that if such policies are not designed as a pretext to exclude either sex from employment, slight differences in grooming standards have “only a negligible effect on employment opportunities.” Id. Other courts addressing this question have arrived at a similar result. See, e.g., Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084 (5th Cir. 1975) (concluding that a grooming policy concerning hair length differences for males and females did not constitute sex discrimination and noting that such a policy relates “more closely to the employer’s choice of how to run his business than to equality of employment opportunity”); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 875 n.7 (9th Cir. 2001) (explaining that reasonable regulations concerning dress and grooming standards do not necessarily constitute actionable discrimination under Title VII); Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (grooming policy prohibiting men, but not women, from wearing long hair does not violate Title VII); Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175 (3d Cir. 1985), cert. denied, 475 U.S. 1035, 106 S. Ct. 1244, 89 L. Ed. 2d 353 (1986) (dress codes permissible although specific requirements for males and females may differ); Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977) (a different hair grooming standard for men than for women does not give rise to a Title VII claim); Fountain v. Safeway Stores, Inc., 555 F.2d 753, 755 (9th Cir. 1977) (“regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not discrimination within the meaning of Title VII”); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir. 1976) (sex-differentiated grooming regulation not used as pretext to exclude either sex from employment is not within Title VII’s purview); Fagan v. National Cash Register Co., 481 F.2d 1115, 157 U.S. App. D.C. 15 (D.C. Cir. 1973) (distinction between sexes vis-à-vis grooming standards does not constitute Title VII violation); Finnie v. Lee County, 907 F. Supp. 2d 750, 772-773 (N.D. Miss. 2012)(upholding a “pants-only” dress code because it applied to all employees equally. It did not single out males or females in stark contrast to cases where Title VII was violated because a dress code policy distinguishing between male and female attire with respect to uniform regulations); 30 Capaldo v. Pan American, 1987 U.S. Dist. LEXIS 14475, 1987 WL 9687, at *2 (E.D.N.Y. Mar. 26, 1987) (holding that terminating a male employee for refusing to remove an earring does not state a claim for sex discrimination). Religious discrimination claims In the same vein, dress codes can spark religious discrimination claims if they unfairly interfere with an employee’s right to express their religious beliefs. Avoiding these types of claims is often trickier than avoiding gender-based ones. Both federal and state discrimination laws require employers to accommodate an employee’s religious beliefs, except when the requested accommodation would impose an undue hardship on the employer. An example of an undue hardship would be when there is a business necessity for imposing the requirement where health and/or safety are at risk, e.g., requiring male employees who have to wear gas masks to shave their beards, making police wear the same standard uniform, banning religious headwear that would pose a legitimate safety threat around the machinery that the employee uses, etc. Consequently, most employers cannot prohibit employees from wearing religious garb, e.g., yarmulkes, burkas, etc., and/or from carrying certain religious objects. In EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-5110 (10th Cir. Oct. 1, 2013), a recent case, A&F maintained a dress code, the “Look Policy,” that prohibited employees from wearing head coverings and black clothing. Samantha Elauf interviewed for a job as a sales-floor model wearing a black headscarf (“hijab”). During the interview, neither the assistant manager (“AM”) nor Elauf discussed Elauf’s religion or her wearing of the hijab. While the AM thought Elauf was qualified the district manager (“DM”), said that Elauf “should not be hired because she wore a headscarf – a clothing item that was inconsistent with the Look Policy.” The EEOC sued on Elauf’s behalf, alleging a violation of A&F’s duty of religious accommodation under Title VII. On cross-motions for summary judgment, the court entered judgment in favor of the government; a jury later awarded $20,000 in compensatory damages. The award, however, got thrown out by the Tenth Circuit Court of Appeal because “Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy.” In its decision, the court observed that A&F management was never informed that Elauf wore a headscarf for religious as opposed to cultural reasons and noted that some activities can partake of both religious and secular purposes, it is the adherent – not the employer – that is obliged to inform the employer of a religious objection to a workplace rule. Here is the court’s actually language on this point:
In sum, we hold that, in order to establish the second element of their prima facie case under Title VII’s religion-accommodation theory, ordinarily plaintiffs must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice, due to a conflict between the practice and the employer’s work rules. As noted, we recognize that some courts have taken a different path on this question. However, we are confident that our approach is the sounder one.
Id. at 45-46. The EEOC asked for an en banc review, but the court declined. The company has faced other, similar cases over its treatment of Muslim workers with regard to its “Look Policy.” In September 2013, Abercrombie settled a pair of EEOC cases, one claiming it did not hire a worker for a stockroom position because she wore a headscarf during a job interview, and another alleging that the company fired a former Hollister store employee for refusing to remove her headscarf. As part of that settlement, the company agreed to update its policy to make clear that accommodations can be made for workers with sincerely held religious beliefs. Soon after the Tenth Circuit’s opinion, the EEOC issued its Religious Garb and Grooming in the Workplace: Rights and Responsibilities and accompanying Fact Sheet, which deals specifically with, and not surprisingly, religious accommodations in hiring. In some cases, the gender and religious discrimination claims play out in the same case. Take Finnie v. Lee County, 907 F. Supp. 2d 750, 785 (N.D. Miss. 2012) for example. In that case, which was cited above in the gender discrimination section, after working for a Mississippi Sheriff’s Department as a correctional officer for years, Crystal Finnie converted to the Pentecostal religion. As she explained to the court, this meant she could no longer wear “‘clothing pertaining to a man’s garments,’ such as pants.” Her employer, the Sheriff’s Department, however, required pants as part of the uniform and told her that she would have to “wear pants or resign.” She did not, and was fired. She filed suit and argued that the policy violated her First Amendment right to exercise her religion, “constituted unlawful gender and religious discrimination under Title VII.” The court held that the employer had demonstrated a legitimate safety concern that supported its policy requiring that all correctional officers wear pants and that allowing her to wear a dress instead of pants would cause the employer an undue burden. Race discrimination claims Although infrequent, race discrimination claims can also arise based on dress codes. These claims also typically fail, but there is one type of claim that is a notable exception: No-beard policies have been found to violate discrimination laws because of their disparate impact on African-American males. Pseudofolliculitis barbae — a skin condition aggravated by shaving — occurs only in African-American males. Policies that require all male employees to be clean-shaven therefore disparately affect a protected class of employees and should be avoided. This issue was specifically addressed by the EEOC in its Facts About Race/Color Discrimination publication, cf EEOC v. Greyhound Lines, Inc., 24 Fair Empl.Prac.Cas. 7 (3d Cir. 1980) (recognizing that a no-beard policy could have a disparate impact on individuals with pseudofolliculitis barbae but ultimately holding that the EEOC failed to put forth evidence of an actual disparate impact); Stewart v. City of Houston, 2009 WL 2849728 (S.D. Tex. 2009) (finding against the employees who challenged the city’s grooming policy because the city had a legitimate, necessary policy designed to protect those officers and expert testimony demonstrated that the mask that was to be worn by first responders could not be worn by anyone with a beard.). Takeaways. Employers can certainly have dress code policies. They should ensure they are specific, communicated, strictly enforced, and that management leads by example. In addition, employers must stay cognizant of the employment discrimination law and should remember to give their dress code or grooming policies a second look to make sure they do not cause a disparate impact, i.e., by burdening one gender more than the other, or create a race discrimination or religious accommodation issue.