Summer is here. The warm sunny days, the weekend trips to the lake, and … the sound of flip-flops in the hallway? Yes, summer is here, and relaxed summer dress codes along with it.
Although dress code policies (and enforcement) may be spotlighted at this time of year, employers should pay attention to proper implementation of dress codes regardless of the season. A recent headline provides a perfect example of how the improper implementation of dress code policies can create headaches for employers at any time of year: On June 27, 2011, the EEOC filed a lawsuit in federal court against clothing retailer Abercrombie & Fitch for terminating a female employee who refused to remove her hijab, a Muslim headscarf, while at work.
The concept of an employee dress code is simple in principle. The devil, as they say, is in the details – and in the implementation. With flip-flop and halter-top season upon us, now is a good time to review your company’s appearance policy and how it is applied (and to think seriously about creating a dress code policy if you don’t already have one in place).
Dress codes don’t have to be complicated or lengthy. In fact, simpler is usually better. There’s certainly no need to go into as much detail as UBS did, which experienced significant media ridicule after its hefty 44-page employee dress code was leaked in December last year. (The company revised its policy shortly thereafter.)
Good dress codes are non-discriminatory, reasonable, specific, and based on legitimate business concerns. To help get you started, we’ve compiled a list of federal laws that can have an impact on appearance policies in the workplace. We have also included four rules that, if followed, can help reduce your exposure to costly lawsuits related to dress code policies.
Federal Laws that Impact Dress Code Policies
- Title VII of the Civil Rights Act of 1964
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin. If you’re looking for the law that underpins most challenges to dress code policies, this is it.
Many Title VII lawsuits filed in the past decade have targeted policies that restrict styles of clothing or personal grooming that are distinctly ethnic or racial. Policies requiring all men to be clean shaven, for example, have been successfully challenged by African-American men, who claimed that the policy had a disparate impact on them because the skin condition pseudofolliculitisbarbae (PFB) primarily affects African-American males.
Workers have also frequently used Title VII to challenge sexually discriminatory appearance standards, including dress codes that require women to wear revealing uniforms, and dress codes that were enforced selectively against one gender. Employers may, within reason, have different dress codes for men and women without running afoul of Title VII. That said, the rules should not differ significantly between men and women, and should not impose a greater burden on one gender than the other.
Lastly, as noted at the beginning of this article, challenges to dress codes based on religious discrimination have made frequent headlines over the past several years, particularly with respect to employees wearing identifiably Muslim attire. Under Title VII, employers must make reasonable dress code accommodations for employees’ religious beliefs. This may include allowing an employee to wear particular religious clothing, adornments, or facial hair. Keep in mind that accommodations do not have to be made if doing so would place an undue burden on the employer, such as by posing a safety threat to the employee or to others in the workplace.
- The Americans with Disabilities Act & The Rehabilitation Act
The ADA and Rehabilitation Acts require reasonable accommodation of employee disabilities. This may include modification of uniform requirements, dress code standards, and other appearance rules. For example, an employee with Raynaud’s syndrome, a circulation disorder, may require a modified dress code to stay warm, such as being allowed to wear a sweater or jacket over a uniform.
- The Occupational Safety and Health Act (OSHA)
OSHA regulates safety in the workplace, including the use of safe clothing and other personal protective equipment. Workers may be required to abide by specific appearance and dress code rules in order for an employer to remain compliant with OSHA regulations regarding worker safety and health.
- The National Labor Relations Act (NLRA)
The NLRA protects employees’ rights to organize, unionize, and engage in “concerted activity” regarding the workplace. As such, the NLRA may protect the ability of workers to wear clothing, armbands, buttons, or other accessories that express union or labor messages.
Note, too, that the National Labor Relations Board (NLRB) has recently taken a rather broad view of what constitutes “concerted activity” under the NLRA. In March 2011, for example, the NLRB found in favor of an employee who was terminated after questioning his supervisor, in front of coworkers, about a new dress code that would require men to tuck in their shirts. The decision, Wyndham Resort Development Corp., held that the employee’s action was “concerted activity,” and, therefore, the employer violated the NLRA when it terminated him.
Don’t Forget About State and Local Laws
In addition to the numerous federal laws that can have an impact on workplace dress policies, don’t forget about state and local laws, which often provide broader protection for employees than federal law. Under Michigan’s Elliott-Larsen Civil Rights Act, for example, it is unlawful for employers to discriminate against applicants or employees on the basis of their height or weight. Under California Government Code § 12947.5, it is unlawful for an employer “to refuse to permit an employee to wear pants on account of the sex of the employee.” And Washington D.C.’s Human Rights Act prohibits employment discrimination based on “personal appearance.”
Four Simple Rules
Following these four simple rules can make navigating the complicated subject of workplace dress code policies much easier – and make it less likely that your company will land in legal hot water.
- Communicate. Communicate with your workers and your managers. Explain the dress code policy to them, and be open to questions. Make sure your managers understand how the policy should be uniformly implemented. And communicate effectively with employees who request accommodations or exemptions from the rules.
- Accommodate. Not all requests must be accommodated; but many can be. Be open and willing to make reasonable accommodations, and demonstrate this openness to employees.
- Be Consistent. If a dress code rule applies to one employee, it applies to all employees. Save yourself a lot of headaches – and maybe even a lawsuit or two – by being uniform and consistent in your implementation of dress code and appearance policies.
- When in Doubt, Get Professional Advice. If a dress code issue arises and you’re not sure what to do, call in the experts. It may be a human resources expert, or it may be a lawyer. Whoever it is, remember that smart employers implement and enforce good dress code policies – and seek advice from the experts –before little issues become big problems.