Amid the ever-evolving landscape of workplace discrimination laws, savvy employers must regularly review their personnel policies and procedures to ensure compliance with the most recent legal guidance and developments. For many, it may come as a surprise that company dress codes are among the workplace policies that have been the subject of increased litigation and scrutiny by courts and administrative agencies charged with enforcing anti-discrimination laws. Company dress codes and grooming policies could give rise to a wide variety of legal claims, including employee claims alleging gender discrimination or stereotyping, race or national origin discrimination (e.g., "hairstyle discrimination"), or a failure to provide a religious or medical accommodation or exception to a company policy. Here is what you need to know to assess whether your corporate dress code leaves your company vulnerable to the most common employment claims and, if necessary, some best practice tips to revamp your policy.
Dress Codes Generally
As a general matter, employers have a right to impose reasonable restrictions on employee appearance and attire worn in the workplace. Courts have regularly recognized that employers may have a legitimate business interest in their employees presenting a professional appearance at work, particularly when employees are expected to interact with customers or other third parties. Employers may also have a legitimate interest in imposing certain attire restrictions when the attire could present a safety hazard due to the nature of the employee's work. Dress code and appearance policies may land employers in hot water, however, when they exclude or impose an unequal burden on any class of employees, require adherence to gender stereotypes, do not allow for reasonable religious or medical accommodations, or when the policy is enforced only for certain employees.
Historically, courts have interpreted Title VII of the Civil Rights Act of 1964 (Title VII) to permit employer policies that impose reasonable variations in dress and appearance requirements for male and female employees, as long as the policy is applied uniformly to all employees and does not impose an unequal burden on one sex over the other. For example, courts have historically upheld policies that impose different hair length restrictions for male and female employees. While such gender-specific requirements may be generally permissible under federal law, at least for the time being, employers with gender-specific policies still risk liability under a Title VII "gender stereotyping" theory, alleging that a company requires employees to conform to traditional gender stereotypes by requiring employees to wear attire traditionally "expected" of the employee's gender (e.g., requiring female employees to wear dresses or skirts instead of pants).
In addition, a number of states and local jurisdictions have enacted laws that impose stricter requirements than Title VII. New York City, for example, expressly prohibits employers from adopting any dress code, grooming, or appearance standards that impose different requirements for workers based on gender. In California, it is unlawful for an employer to refuse to permit an employee to wear pants on account of the sex of the employee. In Washington, DC, employers are prohibited from discriminating against employees on the basis of an employee's appearance, which expressly includes an employee's manner or style of dress and personal grooming.
Gender Identity and Expression
Gender-specific policies can also give rise to claims alleging discrimination on the basis of gender identity or expression. The Supreme Court held last year in Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC that Title VII's prohibition against discrimination on the basis of "sex" extended to prohibit discrimination on the basis of an employee's sexual orientation and/or gender identity. Similarly, many state and local jurisdictions specifically prohibit discrimination on the basis of an employee's gender identity or expression, and some states expressly require that employers permit an employee to appear or dress consistently with the employee's gender identity or gender expression. Enforcing a gender-specific dress code or appearance policy on a transgender, non-binary, or gender non-conforming employee may therefore run afoul of both Title VII and applicable state or local law.
A growing number of state and local jurisdictions have recently passed laws or issued guidance prohibiting employers from adopting policies that ban or limit hairstyles or grooming practices associated with racial characteristics. For example, both Maryland and Virginia recently expanded the definition of "race" in their state anti-discrimination laws to expressly encompass traits historically associated with race, including hair texture and type, afro hairstyles, and protective hairstyles, which specifically include braids, twists, and locks. The Equal Employment Opportunity Commission (EEOC) has also taken the position that Title VII prohibits employer policies that do not permit African American employees to wear their hair in a natural hairstyle.
Religious and Medical Accommodations
Title VII prohibits discrimination on the basis of an employee's religion and requires employers to provide reasonable accommodations to employees whose sincerely held religious beliefs conflict with a work requirement, unless doing so would pose an undue hardship on the company. The EEOC has issued guidance advising that employers must make exceptions to their company dress code and grooming policies for employees who seek to wear religious clothing or articles (e.g., Muslim hijab), who observe a religious prohibition against wearing certain garments (e.g., an Orthodox Jewish woman's practice of not wearing pants), or who adhere to certain religious grooming practices (e.g., a Sikh man's practice of not cutting his hair and beard). The Americans with Disabilities Act further requires employers to make reasonable accommodations for qualified employees with a disability, unless doing so would impose an undue burden on the employer's business. This includes making exceptions for employees whose disability makes it difficult to comply with the company dress code or grooming policy. For example, an employer with a grooming policy that generally prohibits employees from wearing facial hair may need to make an exception for an employee with a medical condition that makes it difficult to shave (e.g., pseudofolliculitis barbae).
Union and Concerted Activity
Certain dress code and appearance standards may also violate employees' rights under the National Labor Relation Act (NLRA). The NLRA protects employees' rights to express their support for or opposition to a union (e.g., to wear union insignia) and to engage in other concerted activities, such as discussing terms and conditions of employment. For example, the National Labor Relations Board has historically ruled that a company dress code prohibiting clothing displaying words or images that are "derogatory to the Company" is overbroad and impermissibly restricts employees' rights under the NLRA. A company dress code that prohibits or restricts employees from wearing union insignia or engaging in other protected activities must be based on a legitimate business need (e.g., safety concerns) and must be narrowly tailored to the special circumstances justifying the rule (e.g., restriction applies only to certain work areas).
Best Practices for Dress Codes in a Modern Workplace
Employers looking to update their company dress code to conform with recent legal trends may consider removing any unnecessary details and restrictions. For instance, the policy should avoid specifying hairstyles that are permitted or prohibited in the workplace. Companies can often achieve their objectives through simple, neutral directives, like a requirement that employees always present "a professional appearance" or a requirement that employees wear "professional business attire" on days that they interact with clients. This gives employees the flexibility to choose their own clothing and present an appearance that conforms with their gender identity and expression, cultural and racial heritage, and religious beliefs. Employers that have a legitimate business reason for specifying types of required or prohibited clothing or standards of appearance should ensure that all such requirements are reasonable and tailored to the needs of the specific position. Any dress, grooming, or appearance policy should generally be gender-neutral and applicable to all employees, except in limited circumstances where the company has some specific, work-related reason for a gender-specific requirement. Employers should also be ready to engage with employees about and make exceptions to their policies when needed to accommodate an employee with a religious practice or medical condition that makes it difficult to comply with the policy.
Legal guidance is likely to evolve over time as courts and administrative agencies apply recently enacted laws and interpret recently decided court decisions bearing on these issues. If you have questions about your company's dress code or any issues discussed in this article, please contact the authors or any other attorney in Venable's Labor and Employment Group.