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Devine Millimet

Newsletter

Dress Code Policies

July 07, 2006
By: Debra Ford
Email: dford@devinemillimet.com
Phone: 603.964.4990

It is that time of the year when employers must contend with short pants, short skirts, bare midriffs, skimpy tank tops, biking shorts and similar type dress. Employers often question what is appropriate dress in the workplace and are dress code policies permissible under the law.

In general, dress codes and grooming standards are permissible under federal and state law, and courts have long recognized that employers have a legitimate interest in having a workforce that is professional in appearance, especially when employees interact with third parties such as clients, customers and vendors. Instead of making appropriate attire an individual issue, developing a written dress code policy is often the most effective way to handle what is acceptable work attire. This provides a uniform and consistent way of dealing with dress code issues.

Courts will generally uphold dress code policies when they are implemented for safety reasons. For instance, a policy requiring machinists to be clean-shaven was found legitimate where the machinists needed to wear a respirator with a gas-tight face shield because of potential exposure to toxic gases.

Employers must be careful to draft and implement dress code and grooming standards that do not violate the discrimination laws and/or the federal and state constitutions. The vast majority of claims allege sex or religious discrimination. With regard to sex discrimination, employers may have a different standard for its male and female employees. The different standards must be justified by commonly accepted social norms and must be related to the employer's business needs.

At least one court has determined that an employer discriminated against female employees because it made the female employees wear uniforms, but it permitted similarly situated male employees to wear normal business attire. Accordingly, employers who have a dress code or grooming standards should make sure that it is equally burdensome on both sexes.

Courts also have in recent years decided cases based on religious discrimination. An employer must reasonably accommodate an employee's sincerely held religious belief unless such an accommodation would create an undue hardship for the employer. An accommodation constitutes an undue hardship if it would impose more than a de minimus cost on the employer. Both economic costs and non-economic costs are considered. Recently, the First Circuit Court (which includes Maine, New Hampshire, Massachusetts and Puerto Rico) determined that an employer had no duty to accommodate an employee's demand to display her facial piercing in accordance with her religious practice because such accommodation would impose an undue hardship on the employer which strove to present a "neat, clean and professional image."

Conversely, in a recent religious discrimination case brought by the Equal Employment Opportunity Commission ("EEOC"), the employer refused to offer an employee any accommodation for his Kemetic religion, an ancient Egyptian faith. As part of the religion, the employee receives religious inscriptions in the form of tattoos which were less than a quarter-inch wide and encircled the employee's wrist. The employer prohibited the employees from having visible tattoos and terminated the employee. The chief financial officer for the employer stated that the company had "Christian" values and that the company wanted employees that looked like the "all-American kid" from the suburbs as opposed to a person from the city. The employer resolved the case by paying $150,000 and agreeing to make changes to his policies and procedures.

Public employers should also keep in mind that their employees are protected under the state and federal constitutions. A dress code that treats the sexes differently may violate the equal protection clause, or the failure to provide a religious accommodation may violate the First Amendment. For example, the New York Police Department, which prohibited beards, were found to violate the First Amendment when it denied Sunni Muslims the right to grow beards but permitted those with a skin condition to grow beards.

Employers are strongly encouraged to check with legal counsel before adopting dress code policies. Dress code policies are an effective way to promote a professional workforce, but employers must be careful not to violate federal and state discrimination laws.

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