Appearance Discrimination and Employer Dress Codes
Everyone knows the old adage, “don’t judge a book by its cover.” Those words would not be so well-known if we all did not make judgments about others based on appearance. Ensuring a professional or uniform look for employees who interact with members of the public is important for every employer. However, dress codes can create legal liability for employers if enforcement results in discrimination. This discrimination can be intentional or unintentional where a policy appears to be neutral, but it results in unfair treatment of a certain protected class of workers.
Cultural views about appearance are constantly changing, so it is never a bad time to review employer appearance policies to ensure compliance with local, state, and federal law. As a general rule, policies which affect immutable characteristics are typically discriminatory, and policies affecting mutable characteristics are not. Examples of immutable characteristics are skin color, height, beauty, and hair texture. Mutable characteristics include tattoos, piercings, clothing, and hair length and color. There are important exceptions to this general rule, however, so employers must be aware of changes in the law in their jurisdictions.
As social norms continue to evolve, so must office dress codes. Recently, there has been an increased acceptance of persons identifying as gender-fluid, nonconforming, or transgender. For example, in 2020, the EEOC settled a case filed by a transgender employee challenging the employer’s dress code. In California, women have a right to wear pants. Today’s workforce is made up of people with gender identities and personal senses of style that do not always conform to old standards, so employers must ensure their dress codes reflect that reality.
Dress codes can also impact the religious beliefs of employees. Many employers seek a more professional atmosphere by banning headwear, but such a policy can affect employees’ religious beliefs. In 2015, the U.S. Supreme Court ruled against an employer who did not allow head coverings. According to the court, the employer failed to accommodate the employee’s religious beliefs because wearing a hijab was part of her religion. As this case shows, employer dress codes must provide allowance for employees to wear religious headwear such as hijabs, turbans, or yarmulkes. Religious dress may also include jewelry, tattoos, or piercings.
Employer policies regulating hair which appear neutral, often result in disparate treatment of protected classes. This is especially true for African American workers with “protective hairstyles,” including natural, dreadlocks, twists, afros, cornrows, and braids. California began a trend when it enacted the CROWN Act which expanded civil rights protections to include hair style and texture. Note these legal protections do not usually apply to employees with unnatural hair colors or extreme hairstyles such as mohawks.
Hair length limits can also result in discrimination. Numerous employers have faced lawsuits because of policies requiring different hair lengths for the genders, and court rulings are often conflicting. Regulating hair length can also cause religious discrimination if an employer does not accommodate certain religions. For example, Sikh men do not cut their hair. Similarly, some orthodox Jewish men do not cut or shave specific areas on their head, creating curls. Employers must provide reasonable accommodation of such religious beliefs.
Limitations on facial hair length may discriminate against disabled employees. The most common issue occurs when a male employee has a skin condition which prevents shaving. Any policy regulating the length of facial hair must allow reasonable accommodations when an employee has such a condition.
Clothing and hair are two of the more common areas where employer policies result in litigation, but there are many others. Employers should review their dress codes periodically to ensure they stay current with changing views on gender identity, religious customs, and medical science. Seeking counsel from an experienced employment attorney can be beneficial to this process.
This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, please contact Kellen Crowe.