Nov 14

Hidden Traps in Employee Dress Code Policies

Dress code and grooming standards are common in most workplaces.  Employers often have a policy that provides employees must wear appropriate attire and be properly groomed.  Such general policies often have hidden traps.  For example, is there anything wrong with banning tattoos?  What about traditional ethnic attire?  The answer is, perhaps, and it depends.  Earlier this year, an attorney with the Equal Employment Opportunity Commission (“EEOC”) described cases involving religious clothing and grooming policies as “low hanging fruit” for EEOC enforcement efforts.  Among cases being investigated include employees who have been disciplined for wearing Muslim head scarves, Sikh turbans, uniform pants, and religious tattoos.

In general, an employer may establish a dress code which applies to all employees or employees with certain job categories.  A dress code policy should be in writing, clearly described and evenly enforced.  In most situations, banning tattoos and body piercings will not be a problem.  However, blanket bans and uneven enforcement can result in a serious problem, including a claim of religious discrimination.  For example, a Burger King restaurant was recently sued by the EEOC for terminating an employee with a very small tattoo of an Egyptian scripture which was important to the employee’s religion.  In another case, an employer was sued by a female employee who refused to wear uniform pants, because it violated the tenants of her Christian Pentecostal faith, which prohibited members from wearing clothing of the opposite sex.  The employee’s offer to wear a skirt of modest length was rejected and she was discharged.

Employee Protections under the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment practices on the basis of religion.  Therefore, if a dress code policy conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception unless doing so would result in an undue hardship.  The courts have recognized undue hardships where the religious clothing creates a safety hazard or where the garb may be mistaken as being the employer’s “message” to customers and clients.  An employer’s desire to convey a professional and conservative appearance is not likely going to be deemed by the courts an undue hardship.

Employers should be careful about blanket enforcement of a dress code policy when confronted by an employee who asks for a modification or exception.  Unless the employee’s request would constitute an undue hardship, the accommodation should be made. Employers are urged to review their dress code policies to make sure they are not discriminatory, and managers should be trained to understand the employer’s rights and responsibilities when faced with an employee’s request to wear a religious clothing article that may conflict with company policy.