Can an employer prohibit a male employee from wearing an earring? What if a female employee wants to wear a headscarf? Can an employer refuse to hire an applicant because he or she has a tattoo?
At the risk of sounding like a typical lawyer, the answer is, “It depends.” Let me explain.
As a general matter, employers may impose dress and appearance rules or standards with broad discretion. If an applicant or employee does not like the employer’s restrictions, then the employee need not work for that employer. Indeed, the dress and appearance codes can play an important part in where some individuals decide to work.
There are, however, some limits on the employer’s discretion to impose dress and/or appearance restrictions. One limit is that an employer may be required to accommodate an employee’s religion, depending upon the circumstances. Another limit is that the employee may, if applicable, have “appearance” rights under a collective bargaining agreement. Some courts have also found an employer acts illegally if it applies dress and appearance codes in a discriminatory manner, i.e., the employer’s appearance requirements are not applied uniformly to all employees.
The issue of personal appearance requirements is very important to many employees. Moreover, it is currently being considered by the U.S. Supreme Court in the case of EEOC v. Abercrombie & Fitch Stores, Inc. In this case, a female applicant sought employment with the clothing retailer, Abercrombie & Fitch (A&F). At her interview, the female applicant wore a headscarf, which was consistent with her religious beliefs. The applicant did not advise A&F that her religious beliefs required her to wear a headscarf. Thereafter, A&F denied the applicant a job, based, in part, on her wearing a headscarf, which was inconsistent with the image A&F was seeking to project to the public.
One of the issues in the A&F case is whether an employer can be held liable for religious discrimination where it was not expressly advised by the applicant that she may require an accommodation. The answer is unclear under existing law and can put the employer in a quandary. On one hand, an employer can be held liable for making inquiries about an applicant’s religious beliefs. On the other hand, as in the A&F case, the employer could face potential liability if it does not make such inquiries. It is hoped that the Supreme Court shall help clarify what an employer should do in such situations.
As a general matter, however, employers should not be timid in enforcing their personal appearance requirements, but it is recommended that they take the following precautions:
- Those employers that choose to implement appearance or dress code requirements should make these requirements clear and give enough detail that the requirements are readily understood by employees.
- Any such policy should apply to both male and female employees, although the employer may make reasonable differentiations between the sexes.
- Employers should not impose any dress code requirement upon employees that might subject them to sexual harassment.
- Employers should uniformly apply dress code policies, but be flexible enough to make reasonable accommodations, if necessary.
- Before hiring a new employee, the employer should notify the applicant about its appearance requirements. Courts are usually less sympathetic to an employee’s claim if he or she knew the employer’s requirement, complied during the interview stage and raised a claim only after agreeing to work for the company.
As suggested by the Supreme Court’s recent involvement, the law in this area is still evolving. Accordingly, it is also recommended that employers seek the advice of counsel before implementing or modifying dress and/or appearance policies or practices.
Gregory B. Reilly is a Partner and Head of Martin Clearwater & Bell LLP’s Employment & Labor Practice Group. Greg is an experienced litigator and counselor who has been practicing employment and labor law for more than 20 years in a variety of fields including healthcare, hospitality, staffing and retail.