09/ 08/ 2006
by Michael Mayton
NFIB Legal Foundation
An employee's appearance can often make or break a customer decision. You naturally want to create appearances that shine a positive light on your business. But what about your employees' rights? Can an employee drag you into court for making her cover up a tattoo? Or, what about beards and body piercings? To establish a dress code that steers clear of discrimination, remember three things: Be reasonable, communicate openly and think about your bottom line.
Be reasonable
You will have to navigate between what you want, what the law allows, and what employees are willing to do. Let the law temper your policy to avoid discrimination claims.
Discrimination based on sex
Courts usually side with the employer when the difference in dress by sex is based in social mores. This means an employee is likely to win a lawsuit against you only if your sex-differentiated policy has no basis in what is considered a common social custom.
For example, requiring males to keep hair trimmed short while allowing women to wear long hair does not warrant a claim of sex discrimination. But if your policy commands women to wear only red, while men can wear any color they want, a female employee may have a legitimate sex discrimination claim.
Also, certain local law variations protect the rights of women to wear the same outfit as men. In California, for example, you may not prohibit women from wearing pants.
Discrimination based on race
It's very tough for an employee to prove that a dress-code policy had an impact against her race or ethnic group. However, one of the few situations where courts have sided with the employee has been regarding no-beard rules. In the limited situation where an employee is unable to shave due to pseudofolliculitis barbae, it may be unlawful for you to require shaving. This is because pseudofolliculitis barbae uniquely afflicts African-American males.
Discrimination based on religion
This is the area that has potential to test an employer's sensibilities. The courts look favorably upon religious discrimination claims where the employer has not been reasonable. A couple of common religious claims arise around the need to keep the head covered and grow a beard.
Your employee will likely win this kind of complaint if you can't show how a religious accommodation would create an "undue hardship" on your business. So, if a beard must be worn, and you want to project a business image of clean-cut employees, you had better be prepared to find an equally good position for the religiously bearded outside the customer's view. On the other hand, if you run a factory and an employee's head scarf could reasonably get caught in a machine and thus be a safety hazard, you may have a legitimate claim of undue hardship, if similar machines are involved in all positions.
Rather than getting into too many specifics, you may want to consider a broad policy such as the following:
"An employee's personal appearance and hygiene is a reflection on the company's character. Employees are expected to dress appropriately for their individual work responsibilities and position."
Communicate openly
Don't hide the ball from your employees. Make sure that you communicate the dress-code policy directly to employees early and often. The last thing you want is to surprise an employee with a hidden policy. When you interview new job candidates, be sure to let them know about your policy.
Enforce the policy consistently. If you let the policy slide and then bring it out after your employee upsets you in an unrelated matter, you will only gain the reputation as a boss who does not deal fairly.
Think about your bottom line
When you develop a dress-code policy, focus on business aspects of the policy. This will lead to a policy your employees understand, and you can live with. If you have legitimate business purposes behind your policy, an employee is less likely to feel singled out and discriminated against.
This article was contributed by the NFIB Legal Foundation, a 501 (c)(3) public interest law firm created to protect the rights of America's small-business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation's courts. The National Federation of Independent Business (NFIB) represents the consensus views of its 600,000 members in Washington and all 50 state capitals. More information is available at www.NFIB.com/legal.
