• Dress Code/Personal Appearance- What Can Employers Regulate?
  • February 1, 2019
  • Law Firm: - Office
  • Very generally speaking, federal law permits employers to regulate employee appearance. However, employers should be mindful that, with increasing success, aggrieved employees often cry foul regarding such regulation, often attempting to link their appearance to a protected class or activity under Title VII. An employee might allege discrimination by associating hair length, body piercings, tattoos, jewelry, body weight, and clothing to protected classes such as gender, religion, national origin or race.[1] For example, in EEOC v. Abercrombie & Fitch Stores, Inc., the plaintiff alleged she was not hired because she wore a hijab, and that the company failed to accommodate her religious dress by making an exception to its "Look Policy".[2] In Kintz v. United Parcel Service, Inc., the plaintiff alleged both sex and disability discrimination when the employer allegedly required her to wear long pants to cover a leg brace, but apparently did not enforce the same dress code requirement against male employees with leg braces.[3] And in Cloutier v. Costco Wholesale Corp., the plaintiff claimed Costco failed to accommodate her religious practice as a member of the "Church of Body Modification" when it did not excuse her from the "no facial jewelry" provision of its dress code policy.[4]

    Though employers must remain mindful of the association between some appearance issues and employees’ protected class or activities, workplace health and safety considerations can also impact dress code and grooming policies, often if favor of the employer and its uniformly applied policies. The type of the work in which an employee is engaged may, for example, require hair ties, long pants or protective shoes.[5] In EEOC v. Oak-Rite Manufacturing Corp., a job applicant who was required by her religion to wear skirts challenged the factory's pants-only rule as discriminatory on the basis of religion. The court rejected her claim, concluding that the facially neutral policy was a "reasonable safety measure".[6]

    Employers should draft dress code and appearance policies with due consideration to Title VII. The EEOC provides the following examples in which appearance standards may implicate Title VII prohibitions:

    1. Height and Weight: Standards for height and weight sometimes are challenged as having an unlawful adverse impact. For example, a requirement that employees be at least six feet tall might have an adverse impact on Asian Americans, and thus such a requirement would need to be job-related and consistent with business necessity.
    2. Dress: An employer can impose the same dress code on all workers in similar jobs. However, an employer must treat religious or ethnic attire that complies with the dress code the same as other attire that complies with the dress code.
    3. Hair: Employers can impose neutral hairstyle rules – e.g., that hair be neat, clean, and well-groomed – as long as the rules respect differences in hair textures and are applied evenhandedly.[7]

    Another consideration relating to workplace dress codes is the ability of employees to wear union insignia. The right of employees to wear union insignia at work has been recognized, in many circumstances, as a reasonable and legitimate form of union activity.[8] Employers that abbreviate that activity risk violating the National Labor Relations Act. Nevertheless, an employer might be able to show circumstances that justify limiting employees' ability to wear union buttons and decals when display of such union insignia or apparel may unreasonably interfere with a public image that the employer has established.[9]

    For example, in N.L.R.B. v. Starbucks Corp., the court concluded Starbucks’ dress code provision that limited employees to displaying only one pro-union button on their work uniforms was a necessary and appropriate means of protecting its legitimate managerial interest in displaying a particular public image. Therefore, Starbucks’ curtailment of the right of its employees to wear union insignia at work did not violate NLRA. Starbucks could require its employees to wear buttons promoting its products. The information contained on those buttons was just as much a part of employer's public image as any other aspect of its dress code. And, Starbucks was entitled to avoid the distraction from its messages that a number of union buttons would have risked.

    Appearance standards must be neutral, adopted for nondiscriminatory reasons, consistently applied to all persons, and, if the standard has a disparate impact, it must be job-related and consistent with business necessity. When reviewing dress and appearance policies, employers should consider whether the policy is sufficiently clear and specific. Nevertheless, employers will also want to ensure that there is some flexibility. Managers may need to use discretion when dealing with certain matters such as disability, religious requirements or other case-specific issues that might require accommodations

    [1] Dress Code and Grooming Policies: Telling Employees What Not to Wear, Practical Law Legal Update 1-553-8066.

    [2] E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2034, 192 L.Ed.2d 35 (2015).

    [3] Kintz v. United Parcel Serv., Inc., 766 F.Supp.2d 1245 (M.D. Ala. 2011).

    [4] Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004).

    [5] Dress Code and Grooming Policies: Telling Employees What Not to Wear, Practical Law Legal Update 1-553-8066.

    [6] E.E.O.C. v. Oak-Rite Mfg. Corp., IP 99-1962-C H/G, 2001 WL 1168156, at *1 (S.D. Ind. Aug. 27, 2001).

    [7] EEOC Compliance Manual, Section 15, Race, & Color Discrimination (2006), available at https://www.eeoc.gov/policy/docs/race-color.html#N_151_.

    [8] N.L.R.B. v. Starbucks Corp., 679 F.3d 70, 77 (2d Cir. 2012) (citing Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 802 n. 7, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); accord District Lodge 91, International Ass'n of Machinists and Aerospace Workers, AFL–CIO v. National Labor Relations Board, 814 F.2d 876, 879 (2d Cir.1987)).

    [9] Starwood Hotels & Resorts Worldwide, Inc. 348 NLRB 372, 373 (N.L.R.B. 2006).