Employment Law: Dress Codes And Personal Appearance Standards
"You never get a second chance to make a first impression." Everyone reading this article undoubtedly heard this statement countless times from their parents or grandparents when growing up. In law school and early in our legal careers, we received similar advice from professors and mentors, as initial impressions matter with courts, clients, and opposing counsel.
Because initial impressions also matter to the business community, many companies have adopted dress codes and personal appearance standards: A clothing store requires employees to wear certain clothes from that store. The New York Yankees limit facial hair on the players. A retail store may require its employees to wear a certain uniform; who can think of Best Buy without picturing the ubiquitous blue shirts and tan pants worn by that company's employees? These dress codes or appearance standards benefit the employer's business. As recent cases demonstrate, however, no matter how well intentioned, an employer's desire to regulate the look of its employees can also lead to discrimination claims if handled inappropriately.
Are Accommodations Necessary?
One area where dress codes frequently are challenged is when employers enforce them without exception. For example, in September the Equal Employment Opportunity Commission filed a federal lawsuit against the owner of a KFC franchise in North Carolina, claiming that the franchise discriminated against an employee on the basis of religion.
In that case, the female employee had worn a skirt to work at KFC for several years in accordance with her Pentecostal faith. After a new company purchased that franchise, however, it determined that her skirts were not in accordance with its dress code. When the female employee refused to wear pants to work, her employment was terminated. Based on the allegations in the complaint, it appears that the employer did not have interactive discussions with the employee to determine whether her religious beliefs could be accommodated under its dress policy.
In another recent EEOC lawsuit, a race discrimination claim was made on behalf of an applicant whose job offer was rescinded when she refused to cut her dreadlocks. The company claimed that her dreadlocks violated its policy against "excessive hairstyles," and it rescinded her offer without any further discussion of her hair and the company's policy. The employers' quick judgments may prove problematic as those cases progress, as both state and federal laws require employers to have interactive, good-faith communications with their employees over potential accommodations.
An October 2013 opinion from the U.S. Court of Appeals for the Tenth Circuit demonstrates, however, that not all potential conflicts with a dress code require an interactive process and assessment of possible accommodations for the employee. Employment lawyers have repeatedly told employers that during the hiring process they generally should not ask job applicants for information on several topics, including age, disability, or religious affiliations.
In that recent Tenth Circuit case, a female wearing a hijab applied for a sales position with an Abercrombie & Fitch store and interviewed with the assistant manager of that store. The assistant manager discussed some of the store's personal appearance requirements for sales associates, but he did not mention how the store's "Look Policy" prohibited associates from wearing "caps," nor did he ask the applicant if there was any reason she could not comply with the "Look Policy."
Before the interview the applicant knew the store had some personal appearance standards, yet during the interview, according to the Tenth Circuit, she "never informed [the assistant manager] that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie's clothing policy. Indeed, the topic of her headscarf never came up one way or the other."