Dress Code Considerations for a Diverse Workforce

July 17, 2011 - by: admin 2 COMMENTS

By Carolyn A. Wade

Society’s standards (or lack thereof) regarding clothing and grooming have certainly changed over the last 50 years. Taking a trip on an airplane used to mean “dressing up” and wearing the kind of clothes you would wear to church ― a suit and tie or a dress and heels. Now people fly in sweatpants and sneakers and regularly wear jeans to church. Some employees would happily wear nothing but sweatpants or jeans to work if their employers would let them.

For some employees, personal appearance ― including hairstyle, jewelry, tattoos, piercings, and head coverings as well as clothing ― is a form of self-expression. Religious mandates can also affect an employee’s appearance. Employers are confronted not only with excessively casual appearance but also with other extremes: looks that are too suggestive, too political, too dangerous, too bizarre. What’s “slightly sexy” to one person can be “downright vulgar” to another. So what’s an employer to do? How far can you go in regulating your employees’ appearance?

Generally, your company can enforce a dress code and standards related to employee appearance. However, you must follow some legal restrictions and acknowledge some commonsense considerations when adopting, revising, or enforcing a dress code.

First, the Legal Restrictions

A workplace dress code cannot be enforced if it discriminates against members of a protected class under the civil rights laws that apply to employers. The most obvious example of a discriminatory standard is one that singles people out on the basis of gender ― for example, a requirement that all female employees wear dresses and skirts rather than slacks or trousers. Unless the workplace attire consists of a costume ― think Scarlett O’Hara or the good witch Glenda ― there should be no reason for telling female employees not to wear pants (a dress code can be a bona fide occupational qualification, or BFOQ, under the appropriate circumstances).

Let’s turn the situation around now. Assume that for safety reasons, an employer requires all employees, male and female, to wear pants on the job. What if a female employee objects, claiming that her religious faith requires her to wear skirts rather than pants? The employer’s rule may discriminate against her on the basis of religion. At that point, the employer must ask whether the employee’s religious belief can reasonably be accommodated. What’s the hazard that pants are intended to eliminate? Would a long skirt, as opposed to a shorter skirt, be equally effective?

In one case, a transit authority was held to have violated Title VII of the Civil Rights Act of 1964 when it refused to hire a female applicant who said she was required by her Pentecostal faith to wear skirts rather than pants. Although the transit authority said that skirts posed a safety hazard, the applicant was able to show that she had successfully driven a school bus for three years and received high performance ratings in safety and efficiency from her former employer while wearing long skirts.

Gender roles and sexual orientation are an emerging area in the prohibition of gender discrimination as it relates to dress and grooming codes (for more on gender identity issues see “Lawmakers Try to Address Workplace Gender Identity Issues”). Remember the androgynous Pat from Saturday Night Live? Can you require that an employee dress in a manner that conforms to gender stereotypes? What about a transgendered employee? Is he permitted to cross-dress at work? What if a transgendered employee is on call during the weekend and is called in to work when he is cross-dressed?

In Price Waterhouse v. Hopkins , decided in 1989, the U.S. Supreme Court determined that Title VII’s prohibition against sex discrimination includes “individuals who fail to conform to traditional gender stereotypes.” Although Hopkins was a woman judged by her accounting firm not to dress or behave in a sufficiently feminine manner, several courts since then have ruled that the same principle applies to transsexual employees.

Learn how to fashion and enforce a dress code policy that works with the HR Hero webinar Dress Codes, Tattoos, and Piercings: How HR Can and Can’t Control Employee Choices.

What About Head Coverings?

Many dress codes prohibit employees from wearing hats or other headwear while on the job. However, many Muslim women wear khimars or hajibs, and adherents of some other religions wear similar garments. As with most employment law issues, the ultimate outcome of a case depends on the facts. And as with most cases involving challenges to dress codes, safety is a key factor. Contrast the following two cases:

  • A caseworker in an Office of Family and Children’s Services prevails on her claim that a ban on religious head coverings violates Title VII. The court finds that toleration of religious diversity in this respect is a wise policy in a pluralistic society. An exception to the ban is found to be a reasonable accommodation.
  • A prison management company prevails on its refusal to allow Muslim female employees to wear khimars or head scarves in the prison setting. The court finds that the policy’s ban is justified by serious safety concerns, such as preventing contraband, misidentification, and choking. In this context, an exception to the ban is found to be an undue hardship.

Race and Disability Can Also Be Implicated

Policies prohibiting facial hair have been struck down when they were applied to African Americans or others suffering from pseudofolliculitis barbae (PFB), a race-related skin condition aggravated by shaving. Nonetheless, there may be safety reasons for requiring employees to be clean-shaven, such as jobs necessitating the use of respirators that require air-tight seals, which beards interfere with.

Again, let’s contrast the results of some cases on point. Some pizza delivery drivers with PFB successfully challenged a ban on facial hair ― there was no evidence that customers would order fewer pizzas if the deliverymen had beards. However, black firefighters with PFB couldn’t show that a less discriminatory alternative would be sufficiently safe, and the ban was upheld in their case.

Still, if an employer makes an exception to its “no facial hair” policy for medical reasons, then chances are, it will also be required to permit exceptions for religious reasons. There are religious sects that prohibit adult males from shaving.

Bans on Jewelry and Other Insignia

Prohibitions on jewelry have been held to violate the National Labor Relations Act (NLRA) when they’re applied to union paraphernalia in a disparate manner. Pins, badges, or patches may be regarded as a form of solicitation, and if you don’t prohibit the wearing of all such items, then you won’t be able to selectively enforce a ban on union apparel.

In a case involving Hertz Rent a Car’s ban on any jewelry other than official pins with the Hertz logo, the National Labor Relations Board initially issued a complaint against Hertz. However, the Board later acknowledged that while the company had several inadvertent lapses in enforcement ― some employees occasionally wore holiday pins ― a few incidents were not enough to constitute disparate treatment in violation of Section 8(a)(1) of the NLRA.

Member Dennis Devaney dissented, stating that he believes employees have a “right to wear union insignia unless the employer can demonstrate ‘special circumstances’ showing that such a rule is necessary to maintain production and discipline.” He further noted that he believed Hertz was “diligent in enforcing its no-pin rule strictly as to union pins and was inconsistent ― and perhaps even arbitrary ― in enforcing its rule as to nonunion pins.”

Once Discrimination Hurdles Have Been Cleared

Employees really don’t have any legal right to self-expression in their appearance. Employers can impose dress and grooming standards and, so long as the rules are enforced consistently, require adherence as a condition of employment. However, there are several principles that should guide your decision in this regard.

First, the policy ought to be a rational one. A customer service representative in a call center who doesn’t meet with customers face to face shouldn’t be expected to dress as formally as a customer service representative who does meet with customers and is the company’s physical embodiment. Even for lawyers, there are totally different styles of dressing for (1) the courtroom and meetings with judges, (2) site visits to a manufacturing or mining facility, and (3) legal research and brief writing while sitting in the office. A dress code that’s overly restrictive is apt to be regarded as a negative condition of employment and out of step with competitors and other businesses in any industry.

Second, safety is obviously a key. The more of a nexus there is to safety, the more restrictive the employer’s policy can be. Hairstyles and jewelry are frequently issues when safety and hygiene are a concern. Long, flowing hair can get caught in machinery and compromise sanitation (e.g., in the foodservice and health care industries). In that case, it makes an abundance of sense to require that hair be kept short or in a ponytail or hairnet or otherwise restrained. Likewise, someone who operates a band saw, lathe, or similar equipment shouldn’t be wearing rings, chains, and other accessories that might get caught in the machinery. For other employees, however, there’s no logical reason to prohibit jewelry consistent with the rest of their attire.

Third, customer relations and preference, branding, and morale are important factors. Most employers that require employees to wear uniforms have very strict rules about accessories that can be worn with the uniform in addition to standards relating to the uniform’s upkeep and cleanliness. Even without an official uniform, you are entitled to insist on basic levels of cleanliness and adherence to commonly accepted standards of decency. You don’t have to tolerate provocative or extreme clothing.

There are some employees who apparently believe they have a legal right to display piercings and tattoos. They are wrong, and their legal challenges have generally failed. However, given the increasing prevalence of piercings and tattoos, you may not want to exclude applicants who have them; there might be some very good applicants and employees who fall into this category. Nonetheless, there is nothing wrong with requiring employees to cover their tattoos and piercings while at work, particularly if they have contact with customers or the public.

A Final Word on Uniforms

If you require employees to purchase and maintain uniforms and you make payroll deductions for those uniform costs, it’s a violation of the Fair Labor Standards Act (FLSA) to reduce an employee’s pay below the minimum wage or cut into his overtime premium with those deductions. If you encroach into the minimum wage or the overtime premium, then you must make up the shortfall no later than the next regular payday.

According to the U.S. Department of Labor‘s Fact Sheet No. 16 (Deductions from Wages for Uniforms and Other Facilities Under the FLSA), “The employer may prorate deductions for the cost of the uniform over a period of paydays provided the prorated deductions do not reduce the employee’s wages below the required minimum wage or overtime compensation in any workweek. . . . Employers may not avoid FLSA minimum wage and overtime requirements by having the employee reimburse the employer in cash for the cost of such items in lieu of deducting the cost from the employee’s wages.” Thus, you must be careful to make deductions in sufficiently small amounts that do not run afoul of the prohibitions or promptly pay the employee the shortfall.

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Bottom Line

The bottom line is you have the right to set the personal appearance and dress code standards for your business, but you should do so reasonably and responsibly. Keep in mind that the real reason for such policies is to maintain a good public image and to ensure the health and safety of your employees, not to be the “fashion police.” You should think about the needs of your company and develop your policy accordingly. Be reasonable about accommodations when appropriate. Lastly, apply your policy consistently to all employees, and take equal disciplinary steps when the policy is repeatedly violated.

Carolyn Wade is an employment law attorney, focusing her practice in the areas of employment discrimination, wrongful discharge, labor-management relations, and personnel counseling. She  has represented clients before state and federal courts of West Virginia, the Equal Employment Opportunity Commission, and the West Virginia Human Rights Commission. Wade is currently of counsel with Steptoe & Johnson in the firm’s Bridgeport, West Virginia,  office. She can be contacted at carolyn.wade@steptoe-johnson.com.

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2 COMMENTS

1 audra
20:30:41, 28/07/11

How do I address an employee who shows way too much of her breasts, not just cleavage, but tops that are too low?

2 Karen Budrow
06:29:08, 29/07/11

This article is quite helpful and much appreciated. I am an HR Director in a densly populated and very diverse community with many serious concerns when required to address appropriate attire in various jobs. I’ve also encountered the facial hair issue as applied to a safety issue when breathing apparatus was a required piece of equipment on the job.

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