Avoid Discrimination in Your Dress Code

When customers see your company's employees, they gather impressions about your business. That's one reason to exercise some control over what staff members can wear to work and the grooming standards they must follow. Obviously, you want your staff to reflect competence and professionalism.

According to the EEOC, a company can impose a dress code and appearance policy, provided it does not discriminate based on race, religion, gender, color, age or national origin. If your policy isn't already in writing, it should be. And to avoid trouble later, keep in mind that rules should serve a legitimate business purpose such as productivity or safety, and should be applied evenly.

Depending on the nature of jobs, it might be reasonable to set different standards for different groups of employees, such as allowing back office people to dress more casually than those who work directly with the public, or prohibiting dangling jewelry around machinery. In these cases, a legitimate business purpose is served.

Uniforms or Specific Clothing

If you expect employees to wear uniforms, depending on which state you do business in, your company may have to cover the cost. A number of lawsuits have broadened the interpretation of this law to include clothing retailers who require employees to buy and wear the employer's merchandise while at work. For example, Gap, Inc., was ordered to settle a lawsuit with 55,000 current and former employees at its Gap and Banana Republic stores in California in 2003. State law prohibits companies from requiring employees to pay for uniforms or apparel as a condition of employment.

Gap employees were expected to wear the Gap brand and not display logos of other retailers, according to court testimony. Although management contended it was not an official policy, employees interpreted it as such and the San Francisco Superior Court agreed. To compensate, Gap issued clothing vouchers totaling $1.8 million to California employees. Abercrombie & Fitch lost a similar lawsuit in California, and agreed to pay $2.2 million to nearly 11,000 of its employees in 2003. Abercrombie argued that it encouraged employees to buy the company's clothes because it offered them a discount, but denied that wearing them was a requirement.

National Origin and Religious Practice

According to the EEOC, a dress code cannot treat some employees less favorably based on their national origin.

In addition, Title VII of the Civil Rights Act requires employers to reasonably accommodate the religious practices of employees, unless it creates an undue hardship for the business.

In some cases, a dress code decision based on the best intentions can cause problems. For example, in 2010, a Denton, Texas-based company that rents furniture and other items agreed to pay a former employee $21,500 to settle a religious discrimination lawsuit that involved its dress code.

According to the EEOC lawsuit, Alliance Rental Center, L.P. fired a product technician after he declined to participate in the company's "Red Shirt Friday." Alliance required employees to wear red shirts provided by the company on Fridays as a show of support for the U.S. armed forces. However, as a Jehovah's Witness, the technician's religion did not allow him to express opinions about government matters, including military affairs.

The technician informed his supervisors about his religious beliefs and his observance of neutrality on issues of war, including military efforts, but was reprimanded for not complying with the Friday dress code.

The EEOC filed suit after first attempting to reach a voluntary settlement. In addition to the payment to the technician, the settlement requires the company to update its employee handbook to include a new complaint procedure and a statement of the company's awareness of its legal obligation to accommodate religious beliefs. The company will also provide training to managers, post a notice of non-discrimination on employee bulletin boards and notify the EEOC each time it receives a request for religious accommodation from one of its employees during the term of the agreement.

In another case, Alamo Rent-A-Car was found guilty of violating an employee's religious rights when, after the terrorist attacks of 9/11, it prohibited an employee from wearing a head scarf. The employee wore the scarf anyway and was fired. An EEOC investigation found that Alamo had no legitimate business purpose for the decision and made no effort to accommodate the employee's religion (EEOC v Alamo Rent-A-Car, LLC; ANC Rental Corporation, CIV 02-908 PHX-ROS).

But employees don't always prevail. Costco Wholesale fired Kimberly Cloutier when she refused to remove an eyebrow ring. The retailer had a store-wide policy of prohibiting facial and tongue jewelry. The employee claimed that Costco violated her religion (the Church of Body Modification), which required her to have facial and body piercings. She complained to the EEOC.

During mediation, Costco offered to allow her to return to work wearing a Band-Aid over the piercing, or wearing a clear plastic retainer in place of the ring. But Cloutier rejected these solutions, saying that her faith required her to display piercings.

The EEOC found Costco guilty of religious bias, but the U.S. Court of Appeals saw things differently. By proposing possible solutions which Cloutier rejected, the court ruled that Costco made a good faith effort to accommodate her religion (Cloutier v. Costco Wholesale Corp., No. 04-1475, 1st Cir., 2004).

As you can see, navigating the dress code waters isn't always easy. But employers are entitled to set standards and expect staff members to follow them. Make sure that your policies don't favor one group over another and that your decisions serve legitimate, defensible business purposes. Once a policy is in place, enforce it evenly to avoid trouble.

"It is axiomatic that, for better or for worse, employees reflect on employers. This is particularly true of employees who regularly interact with customers as [Kimberly] did in her cashier position. Even if [Kimberly] did not regularly receive any complaints about her appearance, her facial jewelry influenced Costco's public image and, in Costco's calculation, detracted from its professionalism."

-- U.S. Court of Appeals for the 1st Circuit

Consistent Application is Key

Quantum Electronics had a dress code which prohibited the wearing of casual clothes except those which displayed the company logo. But when employees routinely wore clothes with other logos, such as sports insignias, the management did nothing. That is, until one employee wore a shirt bearing the logo of an electrical workers union.

The employee was ordered to turn the shirt inside-out or be terminated. He refused and was fired. After the employee complained to the National Labor Relations Board (NLRB), it found Quantum guilty of unfair labor practices based on two points:

  1. The dress code had not been enforced evenly.
  2. The company could not show a legitimate business purpose for demanding the employee change his shirt. Quantum was forced to rehire him and provide compensation for losses associated with his termination. (NLRB v. Quantum Electrical, Inc., 341 NLRB No. 146, 2004)

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