Summer Attire Triggers 'Hot' Buttons For Employers

The HR manager asked for advice on the types of dress and grooming requirements the company may impose upon its workforce.

Hotline Advice: Many businesses have dress and grooming codes, particularly for employees who deal directly with customers. In fact, the law gives employers wide latitude to impose such requirements. It's hard to quarrel with the notion that employers have a legitimate business reason for having their employees convey a neat, clean and professional image.

Grooming and dress codes that differentiate between men and women are not unlawful as sex discrimination, as these workplace requirements have no impact on employment opportunities. The prime exception to this rule is in California, which has a specific statutory prohibition limiting a dress code policy.

California law makes it an unlawful employment practice for an employer to refuse to permit an employee to wear pants on account of gender. Thus, California employers in theory can ban pants for all employees but must not ban pants for men or women only. This means, in effect, that an employer's discretion is hampered when it comes to dictating a specific wardrobe or uniform in relation to pants.

In the jurisdiction in which the HR manager expects to craft a new personnel policy, however, there are no state law prohibitions on a reasonable dress and grooming code.

Based on this body of workplace law, an employer is well within its rights to require workers to adhere to a dress and grooming policy based on the business needs of the company. While most such codes are written in general terms, they usually require professional business attire and appropriate grooming.

At the same time, enforcement of dress and grooming policies often conflicts with the highly individualized tastes and preferences of employees, both with respect to attire and the evolving notions of fashion characterized by tattoos and body piercing.

Where individual tastes and proclivities conflict with an employer's notions of what is acceptable in the workplace, dress and grooming policies invariably draw the attention of the courts, plaintiffs' lawyers, and state and federal governmental enforcement agencies.

Dress and grooming codes are often attacked on the theory that administration of the personnel policy constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. An alternative ground of attack under the same statute usually is based on alleged religious discrimination.

A current "hot" issue in the courts involves the use of stereotyping theories by the plaintiffs' bar and whether or not such requirements, such as a company rule requiring female beverage servers to wear makeup, constitutes illegal discrimination.

This issue currently is being litigated against several high-profile hospitality industry employers. Government lawyers recently used a hybrid of that theory to challenge "image look" hiring, marketing and personnel decision-making.

In November 2004, Abercrombie & Fitch–which was sued and then settled allegations of discrimination that it hired only applicants sporting the "A&F look," or white, young, male and "preppy"–entered into a $50 million class action settlement. While the allegations in that case involved purported discriminatory practices in hiring, pay and promotions, "image" criteria were subject to challenge on the grounds of discrimination by race and national origin.

That being said, the majority rule in the courts allows dress and grooming criteria which are objective, non-exclusionary and based on legitimate business needs. Bans on items related to ethnic hairstyles or clothing easily pass muster under these tests and court challenges are apt to be rejected.

Employment discrimination claims also are sometimes met with a customer preference defense, which in turn is based on a defense called the bona fide occupational qualification, or BFOQ.

Courts examining such challenges to dress and grooming codes will delve deeply into whether the alleged qualification is related to the job in question. As a matter of law, the BFOQ defense is not available in race discrimination cases, although it was recently utilized by a major retailer in the United States to defend against a claim of religious discrimination involving an employee with excessive body piercing.

The company had fired the employee because the body piercings were inconsistent with its notions of appropriate customer service appearance standards for employees who deal with shoppers.

The employee sued on the grounds of religious discrimination–she claimed membership in the Church of Bodily Modification, and a sincere adherence to its tenets on body piercing–and argued that enforcement of the dress code discriminated against her religious beliefs.

The court determined it would have been an undue burden on the employer to accommodate the religious beliefs of the employee with excessive body piercing, especially given the employee's job responsibilities with customers. Hence, the employer's administration of its dress code prohibiting body piercing was deemed to be legal.

Once a dress and grooming policy is promulgated, its enforcement is also impacted by the Fair Labor Standards Act. While it is sound practice to require inappropriately dressed employees to leave the premises until they are properly attired, many courts have held that employees governed by policies where pay is docked for absences of less than one day are not treated as truly salaried employees, and therefore not exempt under the FLSA.

The U.S. Department of Labor promulgated new FLSA regulations on this topic, which became effective Aug. 23, 2004.

The DOL regulations allow pay docking–without risking the exempt status of employees–for serious workplace rules violations. Some examples include harassment, alcohol abuse and workplace violence but do not allow pay docking for work performance such as violating a dress code or attendance rules violations.

To avoid challenges to the salaried status of exempt employees under this policy, an employer's policy should provide that: "Non-exempt employees who are asked to leave work due to a violation of this policy will be required to clock out and will not be paid for any time off of the job."

Lisa Bee is director of EPL risk management for Lexington Insurance Company in Boston. Gerald L. Maatman Jr. is a partner with Seyfarth Shaw LLP in Chicago.

Art caption: Appropriate business dress?

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Flag: Drafting A Dress Code

A typical policy reads: All employees are requested to use good judgment in their manner of dress, appearance and grooming. The company endorses a business casual dress code, and acceptable attire for men includes dress slacks, khakis, shirts with collars and sweaters; for women, acceptable attire includes dress slacks, khakis, blouses, sweaters and casual dresses. Business casual does not include blue jeans, tee shirts, shorts, tank tops, sweatshirts, casual sandals/flip-flops, or other items inconsistent with notions of good taste and an appropriate business environment.