The following is an article reprinted with permission from the Spring 2006 edition of The WWR Letter:
Leisure Suits and Micro-Minis
By: Jennifer Monty, Esquire
Leisure suits and micro-mini skirts should no longer be gracing your closet, but they may be making an appearance in your workplace. If your workplace is thinking about creating or revising its dress code, some considerations must be made. While employers can define whether leisure suits or mini skirts are appropriate to wear to the office, a dress code must be carefully designed to avoid allegations of discrimination.
The standard for determining whether your dress code will create any legal challenges is whether your dress code is applied uniformly to all employees. The dress code must not violate any person’s civil rights, as protected under the law. A dress code cannot discriminate based on sex, religion or race. Typically, allegations regarding dress codes arise through discrimination lawsuits. For an employee to show a case of discrimination, the employee must show that:
(1) That he /she is a member of a protected group (gender, race, religion)
(2) That he/she was subject to an adverse employment decision
(3) That he/she was qualified for the position
(4) That he/she was treated differently from similarly situated members of the unprotected class
Kline v. TVA (6th Cir. 1997), 128 F. 3d 337, 349.
Once all four elements are proven, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for taking the challenged action.
The goal is to avoid any of these discrimination suits, and the common areas where problems arise are detailed below.
While many dress codes will have different implications for men and women, the perfect dress code can be equally applied. A dress code should not differentiate or impose different standards on men or women. Although it may seem okay to require men and women to wear uniforms, this type of stipulation may be suspect. A dress code requirement or uniform cannot require that women only wear skirts or dresses. Dress codes cannot require that female workers wear uniforms, while male workers are permitted to wear business dress.
Other gender issues that tend to arise include lengths of hair that are applicable only to male employees. Courts have upheld a dress code that prohibited men from having long hair. Harper v. Blockbuster Entertainment Corp. (11th Cir. 1998), 139 F.3d 1385. However, an Ohio court in the 1970’s found that matters of personal grooming, if representative of a philosophy, idealism, or a point of view, are protected. Schneider v. Ohio Youth Comm. (1972), 31 Ohio App. 2d 225. The standard test that should be applied when considering whether your dress code sexually discriminates is whether it imposes a greater burden on either men or women.
Racial and Religious Discrimination
Employers must be careful that dress codes do not create any racial or religious discrimination. No-beard policies have been found to be both racially and religiously discriminating. Accommodations must be made within the dress code for religious appearance. However, if an employer can show a legitimate reason for the policy, such as a safety concern, it does not have to allow any exception to its policy. Some reports show that employees may claim that tattoos and body piercing are expressions of racial religious beliefs, however they have not been recognized as indications of racial or religious expressions. So long as any policy regarding tattoos or body piercings is applied equally to all employees, they should be upheld.
To ensure that your dress code is legal, consider the following points:
· Explain Your Reasoning: Your dress code must be based on your work environment and incorporate business-related reasons. Legitimate business reasons that affect dress codes include safety, maintaining public image, and promoting a productive and positive work environment. These reasons should be stated to all employees at the time of hiring so that the explanation will help to minimize any misunderstandings.
· Be Specific: Avoid using generic terms such as business casual or business dress. What is casual to one employee may be offensive to another. Specify exactly what types of clothing are appropriate and inappropriate and revise your dress code yearly to address any problems or new “trends” in your employees’ dress.
· Apply It Equally: Make sure that the dress code is applied equally to all similarly situated employees. Have a procedure for addressing dress code violations, and regularly enforce all violations.
· Accommodate: Make reasonable accommodations when appropriate. Specifically, be prepared to make accommodations based on religion and for employees with disabilities.
Designing a dress code can be as difficult as following the latest fashion trends. To avoid potential legal problems, be sure to consider any discrimination issues and apply your company’s dress code equally to all employees. Having an attorney review your company’s dress code may also be helpful.
Jennifer M. Monty is an associate in the Litigation & Defense department of the Cleveland office. She can reached at (216) 685-1136 or firstname.lastname@example.org.
To read a more in-depth version of this article, which appeared in the Fall 2006 Employment Relations Law Journal, please click here: jnm-designing-a-dress-code.pdf