Many businesses find it appropriate to implement a dress code to ensure that everyone within the organization dresses appropriately and to a companywide standard. But the way an individual chooses to dress is a very personal decision, and an employee’s choice of clothing is one that can involve many factors, including the cost of the clothing, religious observations, cultural influences, and more. How far is too far when a company requires employees to wear (or not wear) specific attire? What legal considerations must an employer take into account?
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Legal Considerations for Dress Codes
Generally speaking, there are two broad areas to consider from a legal standpoint: discrimination and harassment. However, these can take many forms. Here are some of the most prominent examples.
National Origin Discrimination
National origin discrimination is a risk with strict dress codes because there are many national customs that relate to how people dress. For example, if a dress code is implemented that specifically prohibits articles of clothing typically associated with one nationality but does not prohibit otherwise similar types of attire (such as other casual wear), it may be deemed discriminatory.
Religious Discrimination
When it comes to religious discrimination, the same issue may apply as with national origin discrimination—there are specific religious customs and rules related to how people dress. For example, some religions include specific garments to be worn at all times. If an employer prohibits that type of garment, it could interfere with an employee’s ability to practice his or her religion. This is especially problematic if there is not a business justification for the prohibition.
In this situation, employers may find their employees seeking religious accommodations. Employers should outline in their policy how to request dress code exceptions for religious purposes and should also be prepared to explain the business justification for each component of the dress code. When an employee requests an exception, the employer should review the request and determine whether a reasonable accommodation can be made.
It should be noted, however, that an employer is not always required to allow all types of religious dress, particularly if doing so would pose a safety threat in any way or if doing so would pose an undue hardship.
Disability Discrimination
There are instances where an individual’s disability means that he or she is unable to comply with a provision of the dress code. Employers should consider dress code exceptions in these cases and assess what reasonable accommodations can be made. Like any other reasonable accommodation for disability, an interactive process should be followed and an accommodation should be sought and implemented, as long as it does not create an undue hardship.
Gender/Sexual Discrimination or Harassment
Gender discrimination is yet another concern. It’s generally acceptable to have different grooming and dress requirements for different sexes. However, the policy cannot cause an unfair burden or result in a situation in which one sex is treated unfairly. Dress codes should not be used as a way to discourage one sex from applying for a certain position or otherwise give a distinct advantage to one sex over another.
The key is to implement and enforce the policy consistently. If a rule applies to all genders, it must be enforced for all. If the policies differ across gender lines, the differences should be aligned with social norms and should not impose an undue burden on one sex or the other. Be sensitive to how the dress code policy is enforced at the individual level as well. If specific employees are targeted and publicly harassed for dress code violations, that could appear discriminatory. It could even be considered as sexual harassment depending on the circumstances.
Another way a dress code could constitute sexual harassment is when the required attire is sexual or revealing. This could be considered harassment in and of itself in some cases, and it could also create an atmosphere that encourages (rather than prohibits!) sexual harassment from others.
With all of these potential pitfalls, it’s worth asking if dress codes are completely legal at all. The short answer is that most of the time a dress code will be legal as long as it doesn’t unfairly target anyone in a protected class or otherwise harass individuals. If in doubt, be sure to delineate the business justification for the dress code. If there is a valid business reason for it, it’s more likely to stand up to scrutiny. The company should explain to employees this justification and should note that exceptions (such as for religious purposes or due to disability) can be requested. Employees should understand exactly how to make such a request, and if a request is made, the employer must consider all options for reasonable accommodation.
Any time you have questions about whether a dress code policy might cross the line into legally contentious territory, it’s best to consult an attorney for guidance.
*This article does not constitute legal advice.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.