March 2008

Staying Professional:
Dress Codes in the Workplace

Spring is almost upon us! Especially after this past winter, who isn't looking forward to trading heavy winter coats and boots for short sleeves and sandals? With warm weather clothing around the corner, now is the perfect time to review your company's dress code and appearance policy. The law gives employers some flexibility in regulating employee clothing and "body art," such as piercings and tattoos, in the workplace. If, however, your company's policy is not based on legitimate business needs or not applied uniformly, your company could be on the receiving end of a charge of discrimination on the basis of factors such as sex, race, or religion. This Legal Update focuses on striking a balance between respecting your employees' personal tastes and civil rights and maintaining a professional and safe business environment.

Dress codes and appearance policies are legally permissible and common in the workplace. To convey and maintain a professional image, employers may adopt "business casual dress" and prohibit attire that is too casual, such as t-shirts, shorts, and sandals. Tattoos and body piercings have triggered additional workplace policies regulating visible body art, such as requiring employees to cover exposed tattoos with long sleeves scarves or tape all year round. Employers, however, must apply these policies consistently to all employees in similar positions. Otherwise, they may violate employees' civil rights under Title VII of the Civil Rights Act ("Title VII") or state law and risk discrimination lawsuits by employees.

Title VII does not explicitly deal with the validity of dress codes and appearance policies. Rather, it prohibits employers from discriminating against individuals based on factors such as their race, color, religion, sex, and national origin. Thus, if an employer cannot demonstrate a legitimate business necessity for its dress code policy, such as promoting a professional environment or safe operations, or if the employer rejects an alternative employment practice that has a less disparate impact on particular groups of employees, a Title VII violation may be found.

For example, a dress code that treats one gender significantly less favorably than the other gender and has no basis in current social norms could be the basis for a claim of sex discrimination. Thus, a policy requiring only female employees to wear a uniform, while placing no apparel restrictions on male employees, may constitute sex discrimination. A policy, however, that reflects well-established social norms, such as one that requires only male employees to keep their hair cut short, is not discriminatory.

An employer may invite race discrimination claims if its dress code or appearance policy impacts only a particular race or group. Similarly, an employer may not discriminate against ethnic attire that otherwise complies with the dress code. For example, a ban on wearing a traditional sari that does not violate any of the tenets of the dress code would be discriminatory. A personal grooming policy preventing only African American women from wearing their hair in a certain style, while not subjecting other women to such standards, would also run afoul of Title VII.

Employers also risk being charged with religious discrimination by implementing a dress code or appearance policy that requires employees to act in a way contrary to their religious beliefs. In many cases, claims of religious discrimination arise from policies prohibiting head coverings or facial hair. An employee likely will prevail on a religious discrimination claim if the employer cannot demonstrate that accommodating the employee would create an "undue hardship" on the business. An employer can satisfy the "undue hardship" requirement with a showing that the employee's proposed accommodation imposes more than a de minimis - that is, small or insignificant - financial or non-economic cost to the business. Thus, an employer is not required to grant an employee claiming religious discrimination a blanket exemption from a "no-facial-jewellery" policy if the purpose of the policy is to project a professional business image. An employer, however, should make reasonable accommodations where possible, such as placing the employee in a substantially equal position away from the customer's view.

Employers generally have broad discretion in adopting dress codes and appearance policies to protect and promote their professional image. Employers should keep in mind, however, that strict rules that do not take into account differing personal views on dress and grooming may cause resentment and negatively affect employee morale. To that end, here are some tips to consider:

1. Adopt a dress code and appearance policy that are based on legitimate business purposes, such as maintaining the company's professional image or complying with safety standards. You may prohibit visible tattoos, excessive body piercings, and outrageous hair styles.
2. Distribute the policy and keep employees informed of any new developments.
3. Describe appropriate and inappropriate attire. State the consequences for non-compliance. Provide employees in violation of the code with concrete examples of appropriate attire and grooming practices that comply with the code.
4. Consider asking employees for their input on a dress code and appearance policy. Soliciting employee ideas and suggestions may boost employee morale, especially if employee suggestions are embraced.
5. Apply the dress code and appearance policy uniformly in order to avoid race or gender discrimination claims.
6. Be prepared to make reasonable accommodations for an employee's religious practices or disability. For example, a seemingly innocuous appearance policy prohibiting hats or head coverings can be problematic for persons whose religious beliefs mandate that they cover their heads or hair. An employer must be prepared to present evidence that the current policy is without workable alternatives.
7. Take the time to explain the rationale and the business purposes behind the policy to your employees so that they understand the reasoning behind the restrictions.

We are delighted to announce that our FVLD® newsletter is going entirely "green."

For the past several years, we have distributed our newsletter in hard copy format through the postal service and via e-mail. Effective with our next FVLD® newsletter, we will be going to an all e-newsletter distribution system. Why the change? Frankly, we think today's lawyers use way too much paper. We, at FVLD, want to do our part to stand out from the legal crowd and reduce our paper consumption.

As we have done in the past, we will continue to post our current and past FVLD® newsletters on our web site at www.fvldlaw.com.

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Thank you for understanding and supporting our decision to be more mindful of our resources and eco-friendly in our choices.

FVLD prepares employee handbooks and employment policies for its clients, including Employee Handbooks and Dress Codes and Appearance Policies. FVLD publishes updates on legal issues and summaries of legal topics for its clients and friends. They are merely informational and do not constitute legal advice. We welcome comments or questions. If we can be of assistance, please call or write Jonathan Vegosen 312.701.6860 jvegosen@fvldlaw.com, Glenn Rice 312.701.6895 grice@fvldlaw.com, or Orley Moskovits 312.701.6873 omoskovits@fvldlaw.com, or your regular FVLD contact.