Skirting Around Dress Code Discrimination

Develop a dress code that reflects your culture and complies with applicable laws.

August 1, 2013

As summer temperatures rise, so should employers’ awareness of staff’s office attire. During the summer, employers often are confronted with sticky situations involving the application and enforcement of workplace dress codes.

Last June, for example, a Swedish train company prohibited train drivers from wearing shorts despite the high temperatures on its trains, allowing only long pants or skirts.

In response, male drivers donned skirts on particularly hot days, which the employer ultimately permitted to avoid potential sex discrimination claims.

The arrival of summer presents an opportune time for credit unions to develop dress code policies that reflect their organizational culture—and comply with applicable laws. A clearly communicated dress code establishes clear standards and decreases the potential for confrontation with employees. It also can increase productivity, foster a culture of professionalism, and bolster camaraderie between management and staff.

Credit unions should be mindful, however, of applicable federal and state antidiscrimination laws regarding the implementation and enforcement of dress codes. Federal law generally permits employers to establish dress codes that apply to all employees or to employees within certain job categories. Such policies, however, must treat all employees of the same type equally.

In particular, dress codes cannot discriminate against, nor have a disparate impact on, members of a protected class under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin.

Sex discrimination can present a particular challenge. Generally, employers may establish diverse dress code policies for men and women provided that the policies don’t treat one gender significantly less favorably than the other and that they have a firm basis in social norms.

A policy requiring men, but not women, to wear ties would pass muster. But a policy requiring only women to wear uniforms would likely constitute sex discrimination.

Title VII also requires employers to make “reasonable accommodations” for an employee’s “sincerely held” religious beliefs unless that accommodation would result in an “undue hardship” to the employer. For example, a dress code policy prohibiting employees from wearing headwear would have a disparate impact on employees who do so as a daily religious observance (e.g., turbans or yarmulkes). An employer who took adverse action against or failed to reasonably accommodate such employees could face liability under Title VII.

An employer could satisfy the undue hardship exception, however, if the proposed accommodation imposes more than a de minimis financial or noneconomic cost to the employer. If allowing staff to wear a headdress, for example, conflicted with a safety policy requiring all staff to wear hard hats, then requiring the employer to make such an accommodation would likely amount to undue hardship.

To attain maximum benefit from your dress code and minimize legal exposure, the policy should contain a comprehensive description of:

Workplace philosophy. Clearly state the legitimate business purpose for the dress code and explain how the policy achieves that purpose.

Appropriate business attire. Delineate specific types of appropriate business attire for men and women, including effective dates for any seasonal changes to the policy. Seek input from employees as to what they view as appropriate.

Prohibited attire. Provide concrete rules and examples as to what is prohibited attire. State specifically, for example, what is viewed as an inappropriate length for skirts or shorts (e.g., above the knee), or list specific types of slacks that are unacceptable (e.g., sweatpants).

Policy enforcement. Clearly set forth the consequences for initial and continued noncompliance, and apply the dress code policies consistently and uniformly.

Don’t let the summer heat lull you into complacency over employee dress code policies. The best line of defense is to implement and consistently enforce a clearly written policy in advance of any disputes.

MELISSA BEYER is an associate attorney at Farleigh Wada Witt, Portland, Ore.