by Renee Mielnicki, Esq.
For most of us living on the east coast, Spring cannot come soon enough this year. The soon-to-be warm weather may have employees revealing more than employers care to see. From body art to next-to-nothing dresses and skirts, employers who see more than they care to may choose to discipline employees for violating standards of professionalism set forth in their dress code. However, before deciding to spring into action, employers must be cautious not to trample employees’ legal rights.
Title VII of the Civil Rights Act protects employees in the workplace from discrimination and harassment based upon their membership in one or more of the following five protected classes: race, color, religion, national origin and sex. If an employer’s dress code policies treat employees in one of these protected classes differently than anyone else, those employees can make a claim for discrimination or harassment under Title VII.
Discrimination and harassment based upon sex often arises in the context of dress codes. Consider the situation where women are told they must wear skirts and high heels in the workplace. Since such a policy distinguishes between men and women, it may be grounds for a legal claim. Other claims have been filed by women in workplaces where employers have told women to wear clothing that bares more than the essentials in order to appeal to male customers. If enforced, women in certain workplaces may have a sexual harassment claim. Other policies that require men to have short hair but allow women to wear their hair at any length have been challenged as well, because such policies may create an unnecessary distinction between genders.
Religious discrimination can also creep into these situations. Although employers generally have the right to adopt dress code and grooming policies that convey a certain message to customers, an exception may have to be made to those polices to accommodate an employee’s religious beliefs. Examples of religious grooming and dress practices include facial hair, long hair for men, religious garbs, Rastafarian dreadlocks and Jewish peyes sidelocks.
However, as with most other rules, there is always an exception. Employees requesting a religious accommodation (i.e. a request for an exception to the policy) of an employer’s dress code or grooming practices may not be entitled if the employer can show it has a legitimate business reason for denying the request. For example, a manufacturing facility with heavy machinery cannot, for safety reasons, allow an employee to wear loose-fitting, flowing garments. In some cases, even if the employer has a legitimate reason for the policy, it still may have to offer an alternate accommodation. For instance, an employer in the restaurant industry may violate Title VII if it refuses to allow a cook to tie his long hair in a ponytail and place it under a hair net if he claims his Native America religious beliefs necessitate the length of his hair.
Another case highlighting the exception to the rule is EEOC v. Oak-Rite Manufacturing Corp. In that case, Oak-Rite, a metal parts manufacturer, required all employees to wear long pants in its metal-working factory. When a female applicant failed to adhere, claiming her faith prohibited her from wearing long pants, the company would not hire her claiming an accommodation would cause an undue hardship on the company. The court agreed, stating that the employer’s duty of accommodation did not require it to choose between potential Title VII liability and potentially increased risk of workplace injuries.
Some best practices for employers to follow so their policies and practices don’t run afoul of Title VII are:
- Dress code policies should not distinguish between women and men.
- Employers should make efforts to accommodate religious clothing or garbs unless doing so is a safety hazard, a health concern or an undue burden on the employer.
- Employers should have a policy that clearly communicates to employees their right to request a religious accommodation under Title VII.
- All requests for an accommodation should be assessed on a case by case basis.
- Supervisors should be trained to recognize when a religious accommodation request is being made and should promptly respond to the request.
- Engage in the interaction process with employees making religious accommodation requests and attempt to reach a compromise if the accommodation requested is not practical.
- Have a policy against any type of co-worker harassment of employees based upon religious garments, dress or hair styles.