Dress Codes and Appearance Policies: What Not to Wear at Work
| Publication year | 2010 |
| Pages | 55 |
2010, September, Pg. 55. Dress Codes and Appearance Policies: What Not to Wear at Work
September 2010
Vol. 39, No. 9 [Page 55]
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law and in Colorado.
Coordinating Editor
John M. Husband, Denver, of Holland and Hart LLP-(303) 295- 8228,jhusband@hollandhart.com
About the Authors
Laura Hazen is a director with Ireland Stapleton Pryor and Pascoe, PC. Her practice focuses on employment issues and civil litigation, including construction disputes-(303) 628-3618, lhazen@irelandstapleton.com. She thanks Emily Powell and Michelle Ferguson for their helpful insights and suggestions. Jenna Syrdahl is an associate with the law firm of Hensley Kim and Holzer, LLC-(720) 377-0770, jsyrdahl@hkh-law.com.
Whether and to what extent an employer can or should regulate an employee's appearance is increasingly under fire. Dress codes are becoming important pieces of evidence in discrimination and harassment claims. This article provides an overview of the roles that dress codes play in litigation and the theories of liability that implicate dress codes. The article addresses legal issues related to the enforcement of personal expression or appearance policies, particularly as applied to attractiveness, weight, makeup, piercings, and tattoos.
Because entities act through the people who represent them-their employees-the regulation of employee appearance typically is a matter of business necessity. Traditionally, employers have regulated employee appearance through required uniforms and dress code policies. Dress codes provided a laundry list of items of clothing considered appropriate in the workplace, as well as those that were not. Tube tops and spaghetti straps were relegated to the fashion "don't" category, while suits were elevated to the "do" category.
The new concepts of "casual Friday" and "business casual" brought with them dress code confusion. The increased popularity of piercings, tattoos, colorful hair dye, and diverse cultural dress has made traditional ideas about appropriate dress and, in some instances, dress codes themselves, all but obsolete. Employers now are faced with appearance issues not previously contemplated, and have taken their dress code policies back to the drawing board.
As recent case law demonstrates, the desire of employees to engage in individual expression in the workplace coupled with the desire of employers to regulate such individual expression have led to countless conflicts and created a conundrum for some employers in implementing appropriate policies that do not run afoul of Title VII. Simply put, employers must be cognizant of the risks and legal theories involved in developing policies designed to limit personal expression at work.
Brief Summary of Legal Theories
Dress codes can become compelling evidence in discrimination and harassment claims. Employees can use various legal theories in support of their claims against employers based on dress code policies. Below is a brief summary of those legal theories.
EEO Concerns
In the Title VII context, courts apply the three-part burden-shifting framework established in McDonnell Douglas Corp. v. Green.(fn1) When evaluating an appearance policy under the rigors of Title VII, the first inquiry is whether the policy is discriminatory on its face or whether it has a discriminatory effect.(fn2) When discrimination is proven, an employer must provide a legitimate, nondiscriminatory reason for its policy.(fn3) The burden then shifts back to the plaintiff to prove that the employer's stated reason for the appearance policy is a pretext for discrimination.(fn4) In these instances, for example, dress codes could be offered as evidence: (1) that policies were enforced disparately (disparate treatment); (2) of a biased environment (harassment); or (3) as proof that religious or racial differences were not tolerated (discrimination and/or reasonable accommodation).
Stereotype Claims
Dress codes also appear in stereotype claims. Sex stereotype claims stem from the argument that employees are entitled to protection under Title VII if they are discriminated against for failing to conform to sex stereotypes. These cases arise when an employer takes an adverse employment action against an employee for failing to conform to social expectations of how a man or a woman should look and behave. Plaintiffs relying on sex stereotype claims argue that Title Vll's use of the term "sex" encompasses discrimination based on the biological differences between a male and a female, as well as discrimination based on failure to conform to a stereotypical gender norm.(fn5)
Disparate Impact Claims
Complaints about dress codes also may manifest themselves as disparate impact claims. To establish a disparate impact claim under Title VII, employees do not need to show intentional discrimination; rather, they only need to show that the dress code has a disparate impact on one protected class.(fn6) In Dothard v. Rawlinson, the U.S. Supreme Court set forth the steps for proving disparate impact. The Court explained:
[O]nce it is shown that the employment standards are discriminatory in effect, the employer must meet "the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question." If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also "serve the employer's legitimate interest in 'efficient' and trustworthy workmanship."(fn7)
Personal Expression or Dress Code Claims
Employee dress code claims tend to come in one basic fact pattern: an employee arrives at work inappropriately attired (according to his or her supervisor), suffers an adverse employment action, and then files a complaint. In most of the cases cited in this article, the employer's dress code is one of many factors supporting a claim of hostile work environment, wrongful discharge, or discrimination. Employers and counsel must be mindful of the relevant case law and prepare policies that do not discriminate or have a disparate impact on a protected group. A survey of the reported cases that address these issues is provided below.
Religious Discrimination: Tattoos and Piercings
Disparate impact claims are particularly relevant where dress codes and religious beliefs intersect. Religious beliefs are entitled to protection under Title VII.(fn8) The term "religion" includes all aspects of religious observance and practice, as well as belief. The definition of a "sincerely held belief^' includes atheists.(fn9)Interestingly, a judge in the United Kingdom recently held that an employee's sincere beliefs and devotion to climate changes and other environmental concerns-that the employee claimed was the basis for his termination-were akin to a religious belief and should be protected.(fn10) Thus, the concept of "sincerely held belief^' can be broadly applied.
Under Title VII, an employer must offer a reasonable accommodation to resolve a conflict between an employee's sincerely held belief and a condition of employment-including a dress code-unless the accommodation would create an undue hardship for the employer.(fn11) Whether a belief is sincerely held determines whether that belief is entitled to the protections of Title VII, and making that determination is "more often than not a difficult and delicate task."(fn12)
Perhaps the most well-known piercing case in recent years is a decision in which the First Circuit acknowledged that an employee's membership in the Internet-based Church of Body Modification might be a sincerely held belief and therefore trigger the religious protections of Title VII.(fn13) Without addressing the question of whether it was a sincerely held belief, the First Circuit held that it would pose an undue hardship to require Costco to grant an exemption to a female employee who had facial piercings "because it would adversely affect the employer's public image," given Costco's stated "family friendly" image and its determination that facial piercings "detract from the 'neat, clean and professional image' that it aim[ed] to cultivate."(fn14)
With respect to tattoos and piercings, however, a family-friendly business justification will not always protect an employer with an aggressive personal appearance policy. In Washington state, the Equal Employment Opportunity Commission (EEOC) filed suit against Red Robin restaurants for firing a server who refused to cover tattoos on his wrists that he claimed represented his devotion to Ra, the Egyptian sun god.(fn15) Red Robin argued that its policy forbidding visible tattoos was essential to its family-friendly image. The court disagreed with the employer, finding that Red Robin failed to demonstrate that allowing an employee to have visible religious tattoos was inconsistent with its goals. The court denied the employer's motion for summary judgment, and instructed the employer to provide evidence of actual imposition on co-workers or disruption of work routine to demonstrate undue hardship.(fn16)
However, all tattoos are not created equal in the eyes of the courts. In a 2000 ruling, the U.S. District Court for the Northern District of Indiana ruled that an employer was reasonable and within its right to ask an employee, who was a member of the Ku Klux Klan, to cover a tattoo of a hooded figure in front of a burning cross, notwithstanding the...
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