How to Avoid Legal Battles Over Dress Codes

What if a company’s new receptionist shows up for work wearing a headscarf? Or a male truck driver refuses to shave his beard because growing a beard is an essential part of his cultural identity?

Title VII of the Civil Rights Act of 1964 protects employees from discrimination on a number of grounds, race, religion, gender and national origin included. Each of these protected classifications can be related to the dress or appearance of an employee in the workplace. Each could also set up a confrontation that could result in litigation.

Here are a few areas to look out for when drafting and evaluating an organizational dress code.

Religious Clothing or Customs
One of the most common legal issues with the enforcement of dress codes is the request to accommodate employees’ religious beliefs. This may include employees wearing clothing or jewelry or maintaining a certain appearance.

The employer is obligated under Title VII — not to mention most state anti-discrimination laws — to make a reasonable accommodation for religious beliefs in the workplace, which would include making reasonable exceptions to applicable dress code policies. An employer is not required, however, to make an exception to its dress code policy if the exception would create an undue hardship, something that would either alter the nature of the business or affect its viability.

Courts have also been willing to recognize that employers must maintain certain standards for safety or sanitation to run their businesses. If a loose article of clothing were to become caught in machinery or jewelry were to fall into food, such accommodations can lawfully be refused.

But most requests for accommodation fall into gray areas involving simple appearance standards and company image. An employer’s refusal to make an exception to a dress code policy because it believes customers prefer a certain “image” — that customers would be less willing to do business with an employee who dresses or looks a certain way — have typically been rejected as unlawful stereotyping.

The Equal Employment Opportunity Commission, for example, settled a class-action lawsuit against Abercrombie & Fitch for $50 million when the company was accused of discrimination against minority sales staff, some of whom did not fit the company’s “marketing image.”

Absent a compelling reason for not making an exception — such as operational or safety concerns — employers should typically explore whether there is a potential compromise that would satisfy the employee’s concerns. The employer has a reasonable interest to maintain a strict dress code, but sometimes the needs of a diverse workplace must also be taken into account as the law allows.

Tattoos and Piercings
Statistics from a study published by the American Academy of Dermatology in 2006 found that roughly 40 percent of Americans under age 50 have either a tattoo or body piercing. Like other areas of dress codes, policies against tattoos and piercings have resulted in religious discrimination cases.

Perhaps the most famous case involved a food handler for Costco who claimed she was a member of the Church of Body Modification. She sued in 2002 for discrimination when she was asked to remove or cover up a facial piercing. The company ultimately won the lawsuit, but spent thousands of dollars on legal expenses.

For tattoos, other legal issues can arise. Even if a tattoo is not visible, co-workers may discover that an employee has a tattoo with a racially or sexually offensive message. This can create a real headache for an employer — imagine a supervisor with a Confederate flag tattoo, for instance, is making decisions in the workplace and could become embroiled in a discrimination lawsuit.

In any event, employees with tattoos or piercings are not a legally protected class, so an employer is free to lawfully restrict appearance in this area as much as desired.

Gender Stereotypes
No one wants to be labeled the “fashion police,” but in every workplace there is an employee who pushes the boundaries. The problem, however, is that what one person views as legitimate restrictions on hairstyles or overly revealing dress may be construed by others as evidence of gender stereotyping and discrimination.

There have been numerous lawsuits brought against organizations with dress codes that plaintiffs claim placed undue burdens on female employees. A female employee sued Harrah’s Casino for its dress code policy, which she claimed placed an undue burden on females because of a requirement to wear makeup. In a 2005 ruling by the Ninth Circuit Court of Appeals, the casino ultimately won in a 7-4 split decision.

Similarly, policies that discriminate against male employees based on stereotypes can also be challenged. This year a server at a Taco Bell franchise in North Carolina received a $27,000 settlement in a religious discrimination case when he was asked to cut his long hair. The employee was a Nazirite; he believed, like Samson in the Old Testament, that his long hair was a way of showing devotion to God.

Accordingly, employers should be careful with implementing substantially different dress codes for men and women. Although dress code issues will differ between the genders, employers should attempt to avoid policies that have substantially different criteria for each.

For firms putting together a dress code, it’s important to ground the policies in the needs of the business. Federal law may require that you make exceptions to these policies based on the needs of employees, but the employer has wide discretion in the time and method to make exceptions, and employers can reasonably tailor those exceptions to avoid undue hardship on the business.

Most importantly, avoiding legal disputes over dress codes requires consistency. Like any other policy, a dress code is only as effective as it is communicated and enforced consistently.

David Barron is a member of Cozen O’Connor’s Houston law office. He can be reached at editor@diversity-executive.com.