Employment Law: Dress Codes And Personal Appearance Standards
After speaking with several levels of supervisors, the assistant manager did not offer the applicant a position based in part on a determination that the hijab would violate the "Look Policy." After learning from a friend of the reason why she did not get the position, the applicant sued. Analyzing the applicant's failure to accommodate claim, the court noted that the employer was in the difficult position of not being able to ask about the applicant's religion or even to make assumptions about her religion during the interview, yet also needing information about her religion and any related obligation concerning the hijab to discuss possible accommodations to the dress policy.
The parties "vigorously" debated the level of knowledge required by employer to support a failure to accommodate claim. Ultimately, the court agreed with the store's position, concluding that in order to state a prima facie case of failure to accommodate, a plaintiff must establish that she initially informed the employer that she adheres to a particular practice for religious reasons, and that she needs an accommodation for that practice due to a conflict between the practice and the employer's neutral work rule.
Although the Tenth Circuit's majority opinion is a positive case for employers facing similar claims, there also was a well-reasoned dissent. As noted by the dissenting judge, the employer in that case was in the superior position in regard to knowledge, as the applicant did not know about the specific provisions of the dress code and the potential conflict with her hijab. Therefore, the applicant's failure to accommodate claim should have survived the store's motion for summary judgment. This is an interesting case with a difficult set of facts, and it is unclear whether the Tenth Circuit's majority opinion will be followed by other circuits. Until further guidance is issued on this topic, employers should carefully review how their policies address apparent, yet unspoken conflicts between an applicant or employee and a dress code or personal appearance policy.
Scope And Enforcement
Employees' beliefs that personal appearance standards and dress codes are being applied in an unequal manner also can lead to lawsuits against employers. For example, a July 2013 opinion from New Jersey addressed claims made against a casino by female employees called "Borgata Babes," who were "part fashion model, part beverage server, part charming host and hostess."
The female plaintiffs first claimed that the casino's personal appearance policy was unfavorable to them when compared to their male colleagues, as it allegedly forced them to wear outfits that required them to adhere to overt stereotypes of female sexuality. The court rejected this argument, finding that dress requirements were reasonable under New Jersey law and that the female employees had clear notice at the time they started their employment about the clothing requirements and appearance standards for "Borgata Babes." The female plaintiffs also challenged the casino's policy that limited both male and female employee's weight to a maximum of 7 percent over the initial hire weight. The court rejected that claim, too, finding that there was no evidence this policy was applied differently to male employees.
As these cases demonstrate, employers remain free to establish dress codes or appearance standards that are appropriate for the nature of their business — whether chinos and golf shirts at Best Buy or more risqué selections at casinos. Once dress codes or personal appearance policies are adopted, however, employers should enforce them in an even manner. In addition, employers should be prepared to have good-faith discussions with employees who raise the need for accommodations to these policies. •