and Disability Discrimination
and Body Piercings
Tips for Drafting and Enforcing Your Dress Code
you are like many employers, you may mistakenly believe
that discrimination laws restrict your right to determine
appropriate workplace dress. In fact, you actually have a
lot of discretion in what you can require your employees
to wear to work. Generally, a carefully drafted dress code
that is applied consistently should not violate
discrimination laws. However, this fact will not stop
employees from questioning your policy. This article
examines common legal challenges to dress codes and
suggests ways you can avoid problems.
Careful Policy Drafting
You probably have been faced with an employee who
complains that a dress code "violates my
rights." Some employees will even go so far as to
allege discrimination on the basis of sex, religion, or
race under Title VII of the Civil Rights Act. However, if
a dress code is based on business needs and applied
uniformly, it generally will not violate employee civil
Sex discrimination claims typically are not successful
unless the dress policy has no basis in social customs,
differentiates significantly between men and women, or
imposes a greater burden on women. Thus, a policy that
requires female managers to wear uniforms while male
managers are allowed to wear "professional
dress" may be discriminatory. However, dress
requirements that reflect current social norms generally
are upheld, even when they affect only one sex. For
example, in a decision by the Eleventh Circuit Court of
Appeals in Harper v. Blockbuster Entertainment Corp., 139
F.3d 1385 (11th Cir. 1998), the court upheld an
employer’s policy that required only male employees to
cut their long hair.
Be aware, though, that at least one state, California,
prohibits employers from implementing a dress code that
does not allow women to wear pants in the workplace.
According to Section 12947.5 of the California Government
Code, it is an unlawful employment practice for an
employer to prohibit an employee from wearing pants
because of the sex of the employee. The California law
does make exceptions so employees in certain occupations
can be required to wear uniforms.
and Disability Discrimination Claims.
Race discrimination claims can be even more difficult to
prove since the employee must show that the employer’s
dress code has a disparate impact on a protected class of
employees. One limited area where race claims have had
some success is in challenges to "no beard"
policies. A few courts have determined that a policy that
requires all male employees to be clean-shaven may
discriminate if it does not accommodate individuals with
pseudofolliculitis barbae (PFB), a skin condition
aggravated by shaving that occurs almost exclusively among
No-beard rules also may violate disability discrimination
laws. A few courts have ruled that PFB is a disabling
condition and thus requires reasonable accommodation under
state disability laws and the federal Rehabilitation Act
(which prohibits federal contractors from discriminating
in employment based on disability).
Employees have had more success claiming dress codes
violate religious discrimination laws. These claims are
likely if an employer is unwilling to allow an
employee’s religious dress or appearance. For example, a
policy may be discriminatory if it does not accommodate an
employee’s religious need to cover his head or wear a
beard. However, if an employer can show that the
accommodation would be an undue hardship, such as if the
employee’s dress created a safety concern, it probably
does not have to allow the exception to its policy.
Dress code claims also may be filed under the National
Labor Relations Act (NLRA). To comply with the NLRA,
employers, even in nonunion workplaces, may not
universally ban the wearing of union insignia. An employer
may set neutral policies that, when uniformly enforced,
prohibit employees from wearing certain items of clothing
that also have union insignias on them, such as T-shirts
with union logos if the policy prohibits all T-shirts.
However, several courts have determined that employees
have the right to wear union buttons and pins to work,
unless the wearing of these items creates a safety hazard
or, in the case of workers with public contact, the
employees consistently are required to wear uniforms
without buttons and pins.
Tattoos and Body
Many employees also mistakenly believe that they have a
right to show tattoos and body piercings in the workplace.
While tattoos and piercings may be examples of employee
self-expression, they generally are not recognized as
indications of religious or racial expression and,
therefore, are not protected under federal discrimination
laws. Accordingly, as with most personal appearance and
grooming standards, you have wide latitude to set policy
regarding tattoos and body piercings.
Sense Tips for Drafting and Enforcing Your Dress Code
Here are some ideas for ensuring that your policy complies
with the legal restrictions described above:
1. Base the policy on business-related reasons. Explain
your reasons in the policy so employees understand the
rationale behind the restrictions. Common business-related
reasons include maintaining the organization’s public
image, promoting a productive work environment, or
complying with health and safety standards.
2. Require employees to have an appropriate, well-groomed
appearance. Even casual dress policies should specify what
clothing is inappropriate (such as sweatsuits, shorts, and
jeans) and any special requirements for employees who deal
with the public.
3. Communicate the policy. Use employee handbooks or memos
to alert employees to the new policy, any revisions, and
the penalties for noncompliance. In addition, explain the
policy to job candidates.
4. Apply the dress code policy uniformly to all employees.
This can prevent claims that the policy adversely affects
women or minorities. However, you may have to make
exceptions if required by law. (See next suggestion.)
5. Make reasonable accommodation when the situation
requires an exception. Be prepared to accommodate requests
for religious practices and disabilities, such as head
coverings and facial hair.
6. Apply consistent discipline for dress code violations.
When disciplining violators, point out why their attire
does not comply with the code and what they can do to