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How dress codes can result in harassment and discrimination claims

Dress Codes and Employee Appearance

Despite the fact that employee dress codes have been around for a long time, employment laws are pretty sketchy on the subject. Accordingly, employers have quite a bit of flexibility when writing a policy on employee dress or appearance. Organizations certainly have the flexibility to have a dress code that is business-related, promotes the company’s image needs, or comports with customers’ wishes.

So can a business’ dress code policy prohibit its employees from wearing jeans, short skirts, tight-fitting clothes, muscle shirts, and flip-flops? Can employers prohibit their employees from having visible tattoos or body piercings, wearing earrings (particularly multiples), and displaying funky hair?

Generally speaking, the answer to both questions — from a legal perspective — is yes. But here are three caveats:

Discrimination claims do occasionally arise out of employee dress code policies
Discrimination claims can be related to sex or gender, religion, or race. Although an employer probably can have a dress policy addressing all those things, get some legal advice just to make sure you’re on safe ground.

Mastering HR Report: Discrimination

Sex discrimination. Dress-code-based sex discrimination claims generally aren’t successful. Both the Equal Employment Opportunity Commission (EEOC) and the courts have held that to create a professional atmosphere, employers may establish different dress codes for men and women without violating the discrimination laws. That makes sense when you think that men may be required to wear ties to work whereas women aren’t. The “line” is crossed, however, when the dress code isn’t based on social norms, differs greatly between men and women, or imposes a greater burden on women.

Religious discrimination. Avoiding religious discrimination claims is trickier. Both federal and state discrimination laws require employers to provide certain accommodations to employees who request them because of their religious beliefs. The one exception to that requirement occurs when an employer can show that the accommodation would be an undue hardship. For example, if religious headwear would pose a legitimate safety threat around the machinery that the employee uses, an employer wouldn’t be required to provide the accommodation.

Race discrimination. Although race discrimination claims based on dress codes generally fail, one exception is worth noting. Employees claiming race discrimination must show that the dress code had a disparate, or unequal, impact on their particular protected class. No-beard policies have been found to violate the discrimination laws because of their disparate impact on African-American males. Pseudofolliculitis barbae — a skin condition aggravated by shaving — occurs only in African-American males. Policies that require all male employees to be clean-shaven therefore disparately affect a protected class of employees and should be avoided.

HR Guide to Employment Law, including discrimination

Tattoos and body piercings: Some specific issues
A common issue that many employers face in today’s modern culture is whether to allow tattoos and body piercings. Under the law, employees have no legal right to show body art in the workplace because it isn’t considered a religious or racial expression.

While employers have the legal right to require employees to cover or remove tattoos or piercings, a reasonable approach would be to base your policy on the nature of your workplace and set the grooming standards accordingly.

Be practical and consistent with your business dress code policy
It may make perfect sense for an employer to have a fairly stringent policy for employees who meet the public on the company’s behalf, regularly deal with customers, and are otherwise your company’s face. But does it make sense to have that same policy for employees who work in the warehouse? Who are on the assembly line? Who do nothing but take calls in a call center? Some of the discrimination claims that arise out of dress codes really arise out of their inconsistent application.