Our Clients Ask Us: Dress Code

Q: My company recently implemented a dress code. Is there anything I should be careful of when enforcing it?

A: Yes. While a dress code policy can be important to the company, it is important to insure that the dress code does not cause discrimination issues. Three big areas of concern with regard to discrimination claims are religion, gender and race.

Religion

The Courts rule favorably upon religious discrimination claims where the employer has not been reasonable. The most common religious claims arise from the need to keep the head covered and to grow a beard.

In order to overcome this type of discrimination claim, you must be able to show how an accommodation for religious beliefs would create an

"undue hardship" on your business.

For example, if an employee works in a factory setting and a head covering could cause a safety hazard if it were to get caught in machinery, a policy against it would be reasonable.

Gender

Courts usually find in favor of the employer when there is a difference in the dress code policy by gender when the difference is based in social mores. An employee is likely to win a lawsuit against only if the gender-differentiated policy has no basis in what is considered a common social custom.

For example, the requirement that males must wear a tie while women are not required to do so too does not warrant a claim of gender discrimination. However, if the policy required women to wear only one color, while men can wear any color they wanted, a female employee could have a legitimate gender

discrimination claim.

Race

It is usually difficult for an employee to prove that a dress code policy was aimed at his or her race or ethnic group. One of the few situations where courts have sided with employees has been in situations involving no-beard rules where an employee is unable to shave due to a medical condition known as pseudofolliculitis barbae. In such a situation it would be unlawful for an employer to require shaving because pseudofolliculitis barbae only affects African-American males.

Basically, when enforcing a dress code policy it is important to focus on the business reasons for the policy. If there are legitimate business reasons behind the policy, an employee is less likely to feel singled out and discriminated against. It is also important to consistently enforce the policy with all employees.

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