Dress Codes In The Workplace: Are They Discriminatory

Many employers have adopted dress codes in the workplace that contain restrictions on a number of commonly seen "trends" that are prevalent among young employees.  In particular, there is a rise in the number of employers who prohibit tattoos from being visible, and who restrict the number or types of piercings that may be displayed.   These policies often contain a "grooming policy" as well, with the goal being to project a professional work environment. The issue often asked is whether these polices are discriminatory.

In a strict sense, all dress codes are discriminatory.  They seek to prohibit certain conduct in which some employees want to engage as "self expression."  However, such policies rarely violate discrimination laws unless they cross the line into religious freedom, or are based on ethnic distinctions.  Nonetheless, more and more challenges to these policies are being filed in federal court, with varying results.

Starbucks made headlines recently with its new dress code, which limits the types and amount of jewelry employees can wear, as well as limitations on nose studs and earrings, and the type of tattoos that can be displayed.  The policy also prohibits "bright or unnatural color" of hair.

As a general rule, employers have the right to establish and enforce dress codes as long as there is a legitimate reason for the policy.  Most often, employers will recite that protecting the company's public image is the basis of the policy.  However, when the policy infringes on an employees legitimate religious beliefs, the policy is often found to be discriminatory.

Employers must balance their need/right to enforce dress codes with the need/right of employees for self expression and religious freedom.  If an employer goes too far, it runs a real risk of alienating the workforce, particularly if the workforce is comprised of young adults.    Further, employers must be careful of adopting  policies that discriminate against certain religions, ethnicity, or national origin, or unfairly applies to one gender over another.  Exceptions may be necessary to prevent a policy from running afoul of these areas.  In general, unless it can be demonstrated that granting an exception to the policy to accommodate a religious practice would cause a burden on the business, a company should be willing to accommodate an employee's bona fide religious beliefs and practices.

Dress codes and grooming policies should be drafted as narrowly as possible to achieve the desired business objective, without unfairly or unreasonably imposing on the employees' rights.  In light of the many court challenges to these policies, it would be wise to consult with an attorney to draft or at least review the policy.  The policy should be clean and concise, and demonstrably related to the job.  Providing examples of acceptable vs. unacceptable attire and grooming is a good way to ensure that the policy is not ambiguous on what is or is not allowed.  The policy should direct the employees to a specific person in the company who will be in charge of determining what does or does not comply.  A complaint procedure that allows the employee to challenge the policy internally may be helpful in avoiding unnecessary litigation, particularly where an exception is being requested.

If litigation is filed, the company must be prepared to show that the policy is applied and enforced in a non-discriminatory manner, and that it offers reasonable accommodations when appropriate.

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