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Compliance and Legal

Guide to Dress Codes and Nondiscrimination Laws

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Introduction

Generally, an employer has the right to expect that certain guidelines involving dress and grooming be met in the workplace, and can set forth policies regarding these issues.  

However, when an employer seeks to impose a dress code, uniform requirement, or grooming standard onto employees, there is a potential for the employer to engage in unlawful discrimination.  There are two main areas of potential discrimination.  One is in the area of religious discrimination, as some religions dictate that a person must wear religious garb, headwear, or objects.  The other is in the area of sex, when an employer imposes different standards on male and female employees.  Other areas of potential discrimination include race discrimination, national origin, disability discrimination, and sexual orientation/gender identity discrimination.  These areas of potential discrimination will be discussed below.

Dress Codes

Dress codes and grooming standards are often utilized to impose employee uniformity or to project a certain company image or professionalism.  Dress codes can clarify for employees what type of dress is acceptable and what is not acceptable.  Sometimes dress codes are necessary due to the health and safety concerns of a particular job or worksite.  Dress codes might include rules regarding facial hair, hair length, clothing, accessories, jewelry, visible undergarments, facial and body piercings, and tattoos.

Dress codes should always be in writing, can include examples of dos and don’ts, should be clear and specific, and must be distributed to all affected employees.  Dress codes should always be enforced fairly and consistently.  An employer should never let dress code violations go unchecked, and then suddenly begin enforcing the code without notice.  An employer should never enforce the dress code against some employees, but allow other employees to violate the dress code.  This type of random or inconsistent enforcement is likely to lead to discrimination complaints.

Discrimination Law

Federal and State Laws prohibit discrimination in employment based on a person’s protected class.  Protected classes in include; race/color, creed (religion), national origin, sex (including pregnancy and maternity), marital status, age over 40, disability, use of a guide dog or service animal by a person with a disability, HIV/AIDS or hepatitis C status, sexual orientation/gender identity, and honorably discharged veteran and military status.

Discrimination on the Basis of Creed or Religion

What is a Creed or Religion

State Laws and  Title VII of the Civil Rights Act of 1964 prohibit discrimination in employment based on religion or creed.  A religion or creed is defined broadly and includes observance, practice, and belief.  A creed or religious belief includes those sincere and meaningful beliefs that occupy in the life of that individual a place parallel to that of God in a traditional religion.  The beliefs can include sincerely held moral and ethical beliefs as to what is right and wrong, and beliefs that address ultimate ideas, or questions about life, purpose, and death.

  • A person does not have to be part of an organization or church to have a creed or religion. 
  • Someone from a particular religion may adhere to different practices and beliefs than someone else in the same religion.
  • Someone who was not religious at one point may become religious.
  • Employers may request some type of information to ensure that the employee is sincere, such as further information from the employee or a letter from a religious leader; however, it is often difficult, from a legal standpoint, to challenge a person’s sincerity.

Dress Code Conflicts

Sometimes a sincerely held religious belief will conflict with employer dress codes regarding, clothing, head covers, jewelry, beards, and hair length.  In order to avoid religious discrimination, an employer may need to exempt the employee from the dress code or grooming standard as a reasonable accommodation.  In order to receive a reasonable accommodation from an employer, the employee must have a sincerely held religious belief and put the employer on notice that the religious belief conflicts with a workplace rule.  Once that occurs, the employer and employee must enter into an interactive process to find a reasonable accommodation, unless an accommodation would create an undue hardship for the employer.  An undue hardship means anything more than a minimal cost. 

Examples: A Sikh who wears a turban, a Muslim who wears a hijab (head scarf), or a Jewish man who wears a yarmulke requests a reasonable accommodation exempting him or her from a policy prohibiting headwear.  In most cases, an employer would need to grant that reasonable accommodation.

An exemption from wearing a uniform is granted for a person who wears scarves, headwear, clothing, or icons because of his or her religious beliefs.

An employer with a no beard policy may encounter conflicts with persons whose religions require beards, such as Sikhs, Orthodox Jews, Rastafarians, and some Hindus.  In most cases, an employer would need to grant an exception to the no beard policy. 

Safety Issues and Legal Requirements

An employer does not have to make an exemption from the work rule if the rule is safety based or if the rule is a legal requirement.  Examples of such rules could be a requirement that employees must wear hard hats at a construction site, or a prohibition of loose-fitting clothing or dangling jewelry that could get caught in machinery in a machine shop.  A person can be prohibited from having a beard if their job requires that they wear a mask that creates a seal around their nose and mouth.  These safety issues must be legitimate, and not hypothetical.  An example of a legal requirement would be a health code regulation that prohibits food-handlers from having beards over a certain length.  An employer would not be required to allow anyone with a beard over that length to work in a food handler position.

Job Necessity

An employer also does not have to make an exemption from the work rule if the rule is due to a job necessity.  Examples of job necessities would be wearing a fairy tale character costume at a theme park, wearing a uniform while on patrol with a security company, or wearing a dance costume while dancing in a ballet.  A company that markets hair care products would require its models to show their hair.  A person whose religion requires that their hair be covered could not be a model for the hair care products.

However, job necessity must be distinguished from company image and customer preferences.  Company image and customer preferences are never valid reasons to deny an exemption from a work rule.  The fact that a receptionist’s hajib makes customers uncomfortable is not a valid reason to move her to a more secluded job.

Post 9/11

Employers should be aware that after the 9/11 terrorist attacks, government enforcement agencies are committed to preventing backlash against Muslims, Arabs, Sikhs, and others who may be thought to be associated with terrorists.  In light of this, employers should consider relaxing their uniform and grooming standards, unless there are legitimate safety issues.  Certainly, employers should avoid implementing rules that are more restrictive on religious practices because of terrorism fears.

Example:Prior to 9/11/2001, Muslim female employees were allowed by their employer to leave their shirts untucked, as it was a violation of their religious beliefs to tuck their shirts in as it would reveal their female shape.  After the 9/11 terrorist attacks, the company revoked this accommodation.  The company argued that it was a safety issue.  A U.S. District Court determined that safety was not the primary factor behind the new policy, and struck down the enforcement of the policy.

Discrimination Based on Sex

Courts have found that dress codes can be different for men and women, but cannot be less favorable to one gender.  As long as the dress code is consistent with social norms and customs, does not differ significantly for men and women, and does not place a greater burden on one sex, then a dress code will usually be found not to be discriminatory.

Example of a rule involving a social norm:  

A rule requiring men to wear their hair above their collar is not discriminatory, even if there is not a similar rule for women.

Examples of rules involving equal burdens on men and women:

A dress code requiring men to wear a shirt with a collar and a tie is not discriminatory, as long as women are also required to dress with a similar measure of formality or professionalism.

In Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004), the Court determined that a dress code that required women to wear make-up and nail polish and style their hair was not discriminatory.  Males were required to have short hair and trimmed fingernails.  The Court did not believe that there was evidence to show that the use of make-up cost more or took more time than the grooming standard that the employer imposed on male employees.  The court found that females were not burdened any more than males by the grooming standard.
 

Examples of rules involving differing standards on men and women:

A dress code prohibiting women from wearing t-shirts, but allowing men to wear t-shirts, would be discriminatory.

A dress code requiring men to wear a suit and tie and women to wear a uniform would be discriminatory.

A dress code requiring women to wear skirts as opposed to pants would most likely be found to be discriminatory.

A dress code requiring women to dress in a more revealing or more provocative manner than men would be discriminatory.

Other issues

Dress codes may also potentially give rise to other types of prohibited discrimination.

National Origin Discrimination

An employer cannot adopt a dress code policy that prohibits certain types of ethnic dress, such as Indian saris or traditional African attire.

Race Discrimination

Some African American men have a skin condition called Pseudo-folliculitis barbae, in which shaving badly irritates the skin and causes facial sores.  Some men with the condition wear beards in order to avoid shaving.  Thus, a no-beards policy may disparately impact African Americans.

Disability

Those employers who adhere to an appearance standard (i.e. they want their employees to conform to an ideal of attractiveness) must beware of discriminating against persons who have certain disabilities that affect their appearance, such as cleft lip, Craniosynostosis (misshapen skull), and port wine stain.  Refusing to hire persons with such disabilities could potentially violate the Employment Law Against Discrimination as well as the Americans With Disabilities Act.  Employers who impose dress codes must also be aware of the potential need to make a reasonable accommodation for a person with a disability who is unable to meet the dress code criteria due to the disability.

Sexual Orientation/Gender Identity Discrimination

If a person is transitioning from male to female, or from female to male, employers should allow that person to dress in a manner that is consistent with the gender with which that person identifies.  For example, a person transitioning from male to female, and who identifies as female, should be allowed to wear skirts and long hair.  That person should then otherwise comply with the dress code.

This article was courtesy of  the Human Rights Commission 

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Growth in women's share of science, technology, engineering and mathematics (STEM) occupations declined to 27% in 2011from a high of 34% in 1990. While women make up nearly half of the workforce, they were 26% of the STEM workforce in 2011.

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