Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
Although not required by federal or New Jersey law, many employers utilize policies, which govern appropriate dress and grooming standards for employees in the workplace. For example, when attending business meetings with visitors or clients, employers may require that employee attire reflect that of the individuals with whom that employee is meeting. In other circumstances, employees may simply rely upon common sense and good judgment regarding their appearance and clothing in the workplace or employers may choose to give employees examples of what is appropriate and inappropriate attire. In doing so, however, employers need to be mindful of the potential implications under federal laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), or state laws like the New Jersey Law Against Discrimination (“NJLAD”).
Specifically, employers need to be aware of the following potential forms of discrimination that that may arise as a result of a dress code policy:
- Disability: A policy that does not take into account a reasonable accommodation to its dress code for an individual with a disability may lead to claims under the ADA or NJLAD, unless doing so would result in undue hardship.
- Religion: A policy that prohibits head coverings, for example, may lead to allegations of religious discrimination if that employee is required to wear certain head gear as part of his or her religious beliefs.
- Race: A no-beard policy that prohibits men from having facial hair has been found to disproportionally impact African-American males and may lead to racial discrimination claims.
- National origin: A dress code may not treat some employees less favorably because of their national origin. For example, a dress code that permits casual attire, but prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, would lead to claims of discrimination based on national origin.
- Sex or gender: Requiring women to dress in traditional female clothing (i.e. skirts or dresses) may lead to discrimination claims based on sex or gender. Likewise, this same policy may lead to claims against transgender employees based on their gender non-conformity.
Given these potential risks, it is crucial that employers word their policy in such a way as to avoid discrimination and reduce exposure to legal liability.
Solution: Adopt a Clear Dress Code to Reflect the Employer’s Individual Business Environment.
A properly drafted dress code will not only help to maintain a professional atmosphere that is conducive to the employer’s business environment, but it will also help to limit an employer’s legal exposure given the aforementioned risks under both federal and state law. When implementing a dress code policy, employers should be mindful to incorporate the following:
- Adopt a gender-neutral policy, which expressly states the employer’s business-related reasons for implementing the policy;
- Consider different standards of dress for different job classifications, i.e. office versus warehouse;
- Identify consequences for failing to comply with the dress code policy, including sending employees home without compensation for that day or for those hours not worked;
- Include a provision addressing the availability of reasonable accommodations to the dress code policy under the ADA and NJLAD;
- Consider including a provision stating that the employer’s policy does not intend to interfere with an employee’s Section 7 Rights. For example, a dress code that prevents an employee from wearing a button or slogan may be deemed unlawful if wearing the button or slogan is found to be protected, concerted activity. For a more complete discussion of what conduct amounts to “protected, concerted activity,” please see our previous “Social Media and Discipline” Toolkit Blast.
- Include an acknowledgment page, which recognizes that the employee has received and reviewed the policy.
Finally, it is also very important that employers properly train supervisors and managers on implementing these policies to ensure that the policies are being applied consistently. If you have any specific questions about drafting a dress code or disciplining employees for violating a dress policy, please contact our office directly.