You Can’t Wear That: Drafting and Enforcing Nondiscriminatory Workplace Appearance Policies

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Rebecca Badgett

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Once we make it through the pandemic, many employees will be returning to work for the first time in a very long while. To prepare for this return, organizations may want to review and update their dress codes and/or grooming policies to ensure that they promote an inclusive and nondiscriminatory work environment. Employers commonly adopt dress codes and grooming guidelines (“appearance policies”) to establish a professional atmosphere in the workplace. Appearance policies may require employees to wear business attire, conceal tattoos, remove facial piercings, keep hair neat, not wear fragrances, limit facial hair, and, in general, maintain a neat appearance. These requirements are generally enforceable provided they are adopted for legitimate business purposes and are applied in a consistent and nondiscriminatory manner.

The most common legal basis for challenges to workplace appearance policies is that they violate Title VII. Title VII is a federal law applicable to employers with more than 15 employees that makes it unlawful for an employer to discriminate against any individual because of that person’s race, color, religion, sex, or national origin. Under Title VII, an employee may claim intentional discrimination (disparate treatment) by alleging the employer has purposefully applied some aspect of the appearance policy to him or her in a discriminatory manner based on that employee’s race, color, religion, sex or national origin. An employee may also allege that the appearance policy has a disparate impact—that a facially neutral policy has an actual, though not necessarily deliberate, discriminatory impact on a protected group (for example, an appearance standard has the effect of discriminating against all women).

Because appearance policies have been the subject of employment discrimination claims, employers should familiarize themselves with the following key legal issues prior to drafting or enforcing these policies.

Gender-Neutral Appearance Policies

In the past, it was common for employers to adopt sex-differentiated dress codes. For example, employers often required men to wear collared shirts and ties to work and asked women to select similar business attire. These gender-specific dress policies were generally found not to discriminate on the basis of sex, provided they placed equal burdens on both sexes and were not arbitrarily enforced.

In June 2020, the U.S. Supreme Court expanded the meaning of “sex” under Title VII to include discrimination on the basis of sexual orientation and gender identity. Bostock v. Clayton County 140 S. Ct. 1741 (2020). The Court explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Id. at 1742.

Because Bostock clarified that gender identity cannot be separated from one’s sex, organizations will now want to adopt employment policies that support an employee’s right to present themselves in accordance with the gender norms they identify with rather than the gender he/she/they were assigned at birth. The Bostock decision did not necessarily invalidate all sex-differentiated dress codes or grooming policies—but the underlying impetus of the decision is that employees cannot be asked to follow a gender-specific dress code based on their gender assigned at birth.

In light of Bostock, this is a good time for employers to consider adopting gender-neutral appearance policies. This can be done by removing any reference to gender within the policy, such as deleting gender-specific pronouns like he and she. Gender-neutral appearance policies often include a list of acceptable and unacceptable workplace attire that applies to all employees. For example: Employees may not wear jeans, tank tops, halter tops, or shorts. By adopting a gender-neutral appearance policies, employers will help signal to all employees that the organization promotes an inclusive and accepting workplace environment.

Accommodating Religious Attire

An employee who works in HR at a large organization decides to convert to the religion of Islam and starts wearing a hijab to work as part of her faith. Her supervisor informs the employee this is not allowed because the workplace appearance policy prohibits hats. The employer denies the employee’s request for a religious accommodation. Has the employer violated Title VII’s prohibition against religious discrimination?

Answer: Yes, it is likely that the employee would have a valid claim of religions discrimination against the employer. There is no evidence the employer would suffer an undue hardship by accommodating the employee’s request to wear a hijab to her HR job.

Title VII requires employers to reasonably accommodate its employees’ sincerely held religious beliefs, unless doing so would constitute an undue hardship to the employer. Whether an undue hardship exists is decided on a case-by-case basis, and evidence of a hardship may include monetary or nonmonetary costs to the employer. Importantly, the employer is not required to offer the employee the employee’s preferred accommodation—the accommodation need only to be reasonable under the circumstances.

Workplace health and safety considerations are highly relevant in finding an undue hardship. For example, in Finnie v. Lee Cty. Miss., 907 F. Supp. 2d 750 (N.D. Miss. 2012), the court held that accommodating a female juvenile detention officer’s religious belief by exempting her from the “no skirts” policy would constitute an undue hardship to the employer because a skirt could impair the employee’s ability to perform the defense-tactic maneuvers necessary to the job.

Courts have also found undue hardship when an accommodation would have a negative impact on an organization’s public image or brand. In Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), the court concluded that Costco was not required to accommodate an employee’s facial piercings, which she claimed were a requirement of the Church of Body Modification, because allowing facial piercings would interfere with Costco’s “neat, clean and professional” public image. It should be noted that Costco offered to accommodate the employee by allowing her to cover her piercings while at work—but the employee rejected the accommodation.

When it comes interviewing job applicants, an employer may violate Title VII if avoiding a potential accommodation is a motivating factor in the decision not to hire the applicant—actual knowledge of an applicant’s need for a religious accommodation is unnecessary. This was the issue before the U.S. Supreme Court in EEOC v. Abercrombie & Fitch Stores, 575 U.S. 768 (2015). In this case, a Muslim applicant was not offered a salesclerk position because she wore a hijab to the interview and the retailer had a “no hats” provision in its appearance policy. Although the applicant never requested a religious accommodation, the court held Abercrombie nonetheless violated Title VII because the retailer’s desire to avoid offering an accommodation was a motivating factor in not hiring the woman, who was otherwise qualified for the job.

Hairstyles and Racial Discrimination

Let’s assume a Black job applicant eagerly accepts a job offer to be the social media coordinator for a large organization. The job offer comes with one caveat—the applicant must cut off his dreadlocks pursuant to a policy that requires hairstyles to reflect a business-like image and thereby prohibits excessive hairstyles and unusual colors. Does the employee have a valid claim for racial discrimination under Title VII?

Answer: No, the employer probably hasn’t violated Title VII by asking the employee to comply with the hairstyle policy. However, the employer’s actions likely would be considered discriminatory in several states.

Presently, Title VII does not protect against discrimination based on changeable traits, including hairstyles, like dreadlocks, even if such hairstyles have a socio-cultural racial significance. See Equal Employment Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1032 (11th Cir. 2016) (“As far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race” because hairstyle is not an immutable characteristic.).

Six states, however, have recently enacted anti-discrimination laws, called CROWN Acts, that recognize discrimination based on natural or protective hairstyles as a form of race discrimination. At least twenty additional states, including North Carolina, have considered their own CROWN Act legislation. While our state has not yet adopted such legislation, employers should be aware of this movement and take it into consideration as they adopt and enforce grooming policies related to natural hairstyles, such afros, as well as against braids, twists, dreadlocks, and other hairstyles associated with race.

Key Takeaways

In adopting and enforcing appearance policies, consider the following tips:

  • Ensure that workplace appearance policies reflect legitimate business needs.
  • Enforce policies in a consistent manner and determine how to handle policy violations in advance.
  • Adopt gender-neutral policies that provide examples of acceptable and unacceptable attire in the workplace applicable to all employees.
  • Avoid asking employees to wear clothing associated with the gender assigned to them at birth.
  • Offer reasonable accommodations for sincerely held religious beliefs, unless doing so would result in undue hardship to the employer.
  • Ensure that the desire to avoid a religious accommodation is not a motivating factor in deciding whether to hire a job applicant.

 

 

 

 

 

 

 

 

 

 

 

 

 

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One Response to You Can’t Wear That: Drafting and Enforcing Nondiscriminatory Workplace Appearance Policies

  1. GIEC Global Education and Migration Consultancy says:

    Thank you so much for this amazing information. This is very helpful for us. We appreciate your efforts towards this article.

    Regards,
    Giecglobal Team

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