Avoid Dress Code Discrimination Issues

This is the second of a two-part series of blogs regarding dress codes. Today’s post deals with discrimination, which can be a major item of consideration for many organizations. Here are some of the areas you want to think about when drafting your policy.

 

1. Disability Discrimination

a) Dress and Appearance

Dress or appearance standards that adversely affect or otherwise screen out qualified disabled applicants or employees have been found to be discriminatory.

Examples:

• Excluding applicants or discriminating against employees because of obesity may be illegal.  Severe obesity may be a disability under the ADA.  Such cases would be examined on a case-by-case basis.
• Regarding an individual as disabled because of obesity may also be discriminatory.  For example: an ADA violation was found where an obese applicant for a bus driver position was regarded as disabled because it was believed she could not move appropriately in case of an accident.  She was otherwise qualified for the position based on her driving record, experience, and references.

Failing to hire an applicant due to his facial disfigurement can constitute disability discrimination.

2. Religious Discrimination

Title VII requires that organizations must accommodate an employee’s religious beliefs and practices unless an undue hardship is created.

Examples:

The following practices have generally been upheld:

• An employee was transferred to a janitorial position after refusing to shave his beard for religious reasons.  The company contended that the issue was safety, as the beard did not permit a proper fit of a respirator.

Discrimination has been found where:

a) A nurse had been required to wear a nurse’s cap without a tight fitting scarf underneath (her religion required that her head be covered).

b) A hair salon had refused to allow an employee to wear a yarmulke to work (Jewish skullcap).

c) An airport had refused to allow security workers to wear headscarves (as required by their religion).

3. Racial Discrimination

Charges by employees alleging that dress and grooming standards violated their freedom of expression have generally been upheld.  Expressions of cultural heritage are typically not protected by Title VII.

Examples:

a) African-American employee charges that the company dress code infringed on their black pride and culture were not upheld.

b) Title VII did not protect an employee’s wearing of nose jewelry, which she contended was an expression of her Mexican Indian heritage.

4. What about state and local laws?

Employers must also ensure that dress and appearance policies meet state and local legal requirements.

Examples:

a) California does not allow employers to prohibit employees from wearing pants in the workplace;

b) Wisconsin requires organizations to state their dress and grooming requirements at the time of hire;

c) The District of Columbia (as well as numerous localities) prohibits discrimination based on an individual’s appearance, including style of dress or hair.

We’d love to hear if you’ve face any dress code issues and how you dealt with them!

 

by Joyce Marsh, SPHR, Senior HR Consultant

If yours is like many companies, these two items may be part of your current discussion regarding summer dress code. Yes, it’s rapidly approaching, and it seems the discussion erupts after the first warm, unexpected day when an employee shows up to work in something that is, perhaps, questionable. Then the whole can of worms opens up. Is it appropriate to wear sleeveless tops? What about collarless shirts?

Many of these answers depend on your business, your customers and the overall philosophy of appropriate “dress” within your culture. Whatever the point of view, an understanding of the issues and legal concerns surrounding dress and appearance standards is necessary to ensure that you can implement an effective code that meets the needs for professionalism and safety in your organization. Our next two blogs will explore some items for consideration when drafting your dress code policy.

1. How much freedom does an employer have in setting appearance standards for its employees?
   Typically, a lot. Organizations may generally impose standards based on “social norms.” Appearance and dress requirements that are based on legitimate business needs (e.g., safety needs, industry norms, management philosophy, types of jobs involved and common business standards) are more likely to be upheld should a discrimination charge be filed. Workplace rules based on “personal taste” are typically difficult to defend.
2. What are the discrimination issues?
   Dress and appearance standards may violate federal or state anti-discrimination statutes if they are applied inconsistently or create a disparate impact on a protected group. Sex and religious discrimination are most commonly alleged.
3. Sex Discrimination

a) Dress and Appearance
Dress code differences for men and women do not inherently create sex bias. Different dress standards for men and women that reflect common social norms have generally been upheld. Therefore, employers do not have to apply identical dress standards for men and women. However, dress codes not based on societal norms that impose a greater impact or burden on one sex, that are antiquated or based on sex stereotypes, or that are significantly different for men and women typically cannot be upheld.

Examples:

The following practices have generally been upheld:

• Requiring men, but not women, to wear ties.
• Allowing women, but not men, to wear earrings.
• Terminating a female juvenile center employee for wearing too much makeup (after repeated warnings).
• Prohibiting men from wearing long hair.
• Because of safety reasons, requiring employees to wear hair a certain way or to use a hair net.
• Requiring facial hair to be neatly groomed; however, completely prohibiting facial hair may be discriminatory on the basis of religion, disability or race.

Discrimination has been found where:

• Female employees, but not males, were required to wear uniforms.
• Female employees, but not males, were forced to wear smocks.
• A manager required a female employee to wear makeup within days of being notified that the employee was pregnant. The manager had also asserted that pregnant women were less attractive.
• Maximum weight requirements were established for female airline employees where none were established for males.
• Only women were required to wear contact lenses.
• A convenience store fired a black employee who had a skin disease aggravated by shaving and who refused to shave. (Black males are most likely to have this condition, known as PFB.) Company concerns regarding “image” generally don’t justify a “no beard rule.” PFB may also be a disability under the ADA.
• Male employees were required to wear jackets and ties, but females could wear jeans, sweaters, and other informal apparel.

b) Harassment
Employers have been held liable for sexual harassment because they had required female employees to wear provocative clothing.

Discrimination has been found where:

• A female lobby attendant was required to wear sexually revealing and provocative clothing that subjected her to derogatory comments and harassment from the public.
• A female cocktail waitress was required to wear a revealing costume while male servers wore tuxedos.

Part two of this blog will focus on avoiding potential discrimination issues when concerning disabilities, religion and racial items. So, don’t miss next week’s blog!

« Return to "HR Compliance & Legal"