HR Management & Compliance

Is Your Dress Code Discriminatory?

Employers have many reasons for implementing standards that regulate employee appearance. The primary reasons include:

  • Creating a uniform “look” for employees to distinguish them from customers and promote a professional atmosphere
  • Improving productivity by promoting a more formal atmosphere
  • Upholding a specific image the organization is trying to create, maintain, or sell (this would constitute a legitimate business purpose for a particular required uniform, look, or grooming style, including the prohibition of things that do not align with that image)
  • Ensuring safety for everyone

While there are good reasons for dress codes and related appearance standards, there are also legal considerations. Two of the many areas where employers need to be careful to avoid discrimination are gender discrepancies (including discrimination and harassment) and policies that conflict with religious expression without any room for reasonable accommodations.

Avoiding Gender Discrimination in Dress Codes

Avoiding gender discrimination in dress codes can be tricky, especially since it’s legally permissible to have differing dress codes by gender as long as there is not a higher burden on one gender to adhere to the policy. However, it is not legal to have a dress code for only one gender and no one else. Employers should be careful when drafting a policy to not place restrictions on only one gender when they should actually apply to both.

Currently, the burden of proof (proving the dress code is more burdensome for one gender) lies with the employee bringing the claim of gender-based discrimination. In practice, this means that employers may have significantly differing standards for different genders and it is up to the employee bringing a claim to prove that this difference creates a substantially different burden. This has resulted in court cases being lost if that burden of proof could not be met.

In essence, the way the law currently stands on this matter mirrors and reinforces traditional cultural norms in which women and men are expected to dress and groom differently. Given that context, it becomes more difficult to prove that one gender faces a higher dress code burden than the other. But this is an area employers should watch closely as our collective perception of gender expression evolves—this evolution may significantly impact what is and is not allowed in dress codes in the future, especially as it relates to dress codes that have different rules for both genders. This will surely also evolve as our culture becomes more inclusive and aware of differing gender expression in which individuals may not identify with only one discrete gender or may not identify with the gender they have been biologically assigned.

Avoiding Religious and Other Discrimination in Dress Codes

Gender-based discrimination is not the only discrimination to be wary of. There’s also ample opportunity for a dress code (or related policy on appearance and grooming) to appear to be discriminatory in other ways.

Here are a couple examples where employers may get into trouble:

  • Requiring males to be clean shaven when there is no business purpose behind the decision. This can be discriminatory in multiple ways:
    • It could inhibit some individuals from expressing certain tenets of their religion that require men to remain unshaven.
    • It could be discriminatory against those who have a higher predisposition for skin conditions that arise from shaving, thus creating an undue burden for them, which would be discriminatory.
  • Failing to make exceptions for clothing that is required as part of a religious observance, such as a turban or yarmulke. If an employee requests such an exception, the employer should see if there is a reasonable accommodation that will allow it without causing an undue hardship. Bear in mind that simply claiming that the customers will not want to see this particular clothing item is rarely a sufficient claim of hardship. Even when there is a legitimate business need as noted above (such as promoting a specific image), each case should be evaluated individually to see if accommodations can be made.

Employers need to remember that it is reasonable to find other ways to meet a standard. With the beard example above, if the employer is in food service, the beard can still be accommodated with a hair net designed to cover it.

Discrimination Exceptions: Safety

The primary exception to the above is when a dress code must be implemented for everyone—without exception—for safety reasons. A great example is when a particular type of garment is not allowed around machinery because it can get caught in the machinery and cause injury. While that rule may otherwise have been problematic if it prohibits someone from wearing articles of clothing associated with their religious observances (such as a skirt), it would likely be upheld as legally acceptable because there is a reasonable and justifiable business reason for the policy: safety for all employees.

We’ve touched on only some of the most common risks when it comes to creating employee dress codes. The examples here are certainly not all-encompassing! Employers should remember that dress codes must not be discriminatory in any way, not just in the ways noted above. What has been your experience with creating and maintaining appropriate employee dress codes?

*This article does not constitute legal advice. Always consult legal counsel with specific questions.

 


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.