Costume Codes within the Trendy Office: An Employer’s Information to Avoiding Pitfalls and Legal responsibility

In the midst of ever evolving workplace discrimination laws, savvy employers need to periodically review their human resources policies and procedures to ensure that the latest legal guidelines and developments are being followed. It may come as a surprise to many that corporate dress codes are among the workplace policies that are increasingly the subject of litigation and scrutiny by courts and administrative authorities charged with enforcing anti-discrimination laws. The company’s dress code and personal care policy can give rise to a variety of legal claims, including lawsuits from employees for alleged gender or stereotyping, racial or national origin (e.g., exemption from a company policy. Here’s What You Can Do) need to know to assess whether your company’s dress code makes your company vulnerable to the most common labor claims and, if necessary, some best practice tips for revising your policy.

Dress code in general

In principle, employers have the right to appropriately restrict the appearance and clothing of employees in the workplace. Courts have regularly recognized that employers can have a legitimate business interest in ensuring that their employees appear professional at work, especially when employees are expected to interact with customers or other third parties. Employers may also have a legitimate interest in imposing certain clothing restrictions when the clothing could pose a safety hazard due to the nature of the worker’s job. However, dress code and appearance guidelines can corner employers, but if they exclude or impose an unequal burden on any class of employees, require adherence to gender stereotypes, do not allow adequate religious or medical precautions, or if the policy is enforced only for certain employees .

Gender specific requirements

In the past, courts have interpreted Title VII of the Civil Rights Act of 1964 (Title VII) to allow employer policies requiring appropriate changes in clothing and appearance for male and female workers, as long as the directive is consistently applied to all workers and this does not impose an unequal burden on one sex over the other. For example, courts have in the past upheld guidelines that impose different hair length restrictions on male and female employees. While such gender requirements may be generally acceptable under federal law, employers with gender policies still risk liability under a Title VII “gender stereotyping” theory which claims that a company requires its employees to adhere to traditional gender stereotypes by using Employees are required to wear clothing that is traditionally “expected” of the employee’s gender (e.g. female employees, wearing dresses or skirts instead of pants).

In addition, a number of states and local jurisdictions have laws that impose stricter requirements than Title VII. New York City, for example, specifically prohibits employers from adopting clothing, personal hygiene, or appearance standards that place different demands on workers based on gender. In California, it is illegal for an employer to prohibit an employee from wearing pants based on the sex of the employee. In Washington, DC, employers are prohibited from discriminating against workers on the basis of a worker’s appearance, which specifically includes the manner in which a worker is dressed and groomed.

Gender identity and expression

Gender policies can also give rise to claims of alleged discrimination based on gender identity or expression. The Supreme Court ruled last year in the Bostock v. Clayton County, Georgia and RG & GR Harris Funeral Homes Inc. v EEOC cases that the Title VII prohibition of “gender” discrimination also applied to the prohibition of sexual discrimination An employee’s behavior was expanded to include orientation and / or gender identity. Similarly, many state and local jurisdictions specifically prohibit discrimination based on a worker’s gender identity or expression, and some states specifically require that employers allow an employee to appear or dress according to the worker’s gender identity or expression. Enforcing a gender-specific dress code or appearance on a transgender, non-binary or gender-inconsistent employee may therefore violate Title VII as well as applicable state or local law.

Discrimination in hairstyle

A growing number of state and local jurisdictions have recently passed laws or policies prohibiting employers from establishing policies that prohibit or restrict hairstyles or grooming practices related to racial traits. For example, both Maryland and Virginia recently expanded the definition of “race” in their state anti-discrimination laws to specifically include traits historically associated with race, including hair texture and type, Afro hairstyles, and protective hairstyles, which particularly include braids and braids, and locks. The Equal Employment Opportunity Commission (EEOC) also takes the position that Title VII prohibits employer policies that do not allow African American employees to wear their hair in a natural style.

Religious and medical accommodation

Title VII prohibits discrimination based on a worker’s religion and requires employers to provide reasonable accommodation for workers whose righteous religious beliefs conflict with a job requirement unless it would constitute undue hardship on the company. The EEOC has issued guidelines advising employers to advise workers who wish to wear religious clothing or objects (e.g. the practice of Jewish women not to wear pants) or who adhere to certain religious nursing practices (e.g. the practice of a Sikh man not to cut his hair or beard). The Americans with Disabilities Act also requires employers to provide reasonable accommodation for skilled workers with a disability unless doing so would unduly burden the employer’s business. This also includes making exceptions for employees whose disabilities make it difficult to adhere to the company’s dress code or care policy. For example, an employer with a grooming policy that generally prohibits employees from wearing facial hair may need to make an exception for an employee with a medical condition that makes shaving difficult (e.g. pseudofolliculitis barbae).

Union and concerted activities

Certain dress codes and appearance standards can also violate workers’ rights under the National Labor Relation Act (NLRA). The NLRA protects the right of workers to express their support or disapproval of a union (e.g. wear union badges) and to participate in other concerted activities such as B. Discussing employment conditions. For example, the National Labor Relations Board has ruled in the past that a company dress code that bans clothing with words or images that are “derogatory to the company” is too broad and does not allow workers’ rights under the NLRA restricts. A corporate dress code that prohibits or restricts employees from wearing union badges or engaging in other protected activities must be based on a legitimate business need (e.g., safety concerns) and must be closely tailored to the particular circumstances justifying the rule (e.g., just for certain work areas).

Best practices for dress codes in a modern workplace

Employers looking to update their company dress code to reflect the latest legal trends may consider removing unnecessary details and restrictions. For example, the directive should avoid specifying hairstyles that are allowed or prohibited in the workplace. Companies can often achieve their goals through simple, neutral instructions, such as the requirement that employees always have “a professional appearance” or the requirement that employees wear “professional business clothing” on days when they interact with customers. This gives employees the flexibility to choose their own clothing and present an appearance that matches their gender identity and expression, their cultural and racial heritage, and their religious beliefs. Employers who have a legitimate business reason to indicate types of mandatory or prohibited clothing or appearance standards should ensure that all of these requirements are appropriate and tailored to the needs of the particular position. Any clothing, grooming, or appearance guidelines should generally be gender neutral and apply to all employees except in specific cases where the company has certain work-related reasons for a gendered requirement. Employers should also be willing to discuss their policies with employees and make exceptions to them if necessary to accommodate an employee with a religious practice or medical condition that makes it difficult to comply with the policy.

Legal guidance is likely to evolve over time as courts and administrative authorities apply recently enacted laws and interpret recent court decisions on these issues.