Many employers choose to adopt appearance policies that promote a particular atmosphere or experience for customers and clients. Generally speaking, employers are allowed to require that employees dress professionally, keep a neat and clean appearance, or wear uniforms that clearly designate them as employees.
However, there are limits to this right. Employers may not adopt dress or grooming codes that discriminate against particular employees based on a protected characteristic, such as race, gender, or disability. This article explains some common discrimination claims that might arise from an employer’s appearance policies and how to avoid them. (For more information on avoiding discrimination in the workplace, see Discrimination Lawsuits: Basics for Employers.)
Courts have consistently found that employers may adopt different appearance policies for men and women, as long as those policies don’t place a significantly larger burden on one gender. Some employers, for example, prohibit men from wearing makeup while allowing or even requiring women to do so. Some employers require all employees to dress professionally, but designate different norms for men and women. Such policies are not considered discriminatory, unless prohibited by state law. In California, for example, women must be allowed to wear pants at work, so a dress code that required women to wear a dress or skirt would not pass legal muster.
A dress code that requires much more of one gender than the other may be illegal. If, for example, an employer had no dress code for men but required women to dress in professional attire, that would likely be discriminatory. Similarly, a dress code that was much more expensive for one gender than the other could be discriminatory. For instance, if women could choose their own garments but men had to purchase expensive uniforms, that might be illegal sex discrimination.
As binary gender norms face increasing scrutiny, these rules may change. Transgender employees, employees who are not gender-conforming, and employees who place their gender on a wide spectrum of options rather than identifying as either “male” or “female” are increasingly challenging traditional cultural notions of gender. For now, however, courts typically allow employers to make these distinctions.
Under federal law, most employers must make reasonable accommodations to allow employees to practice their religions. Some employees have religious beliefs that require particular grooming or dress, such as not cutting their hair, wearing particular garments, or wearing certain religious objects.
Your company must make exceptions to its usual dress code to allow for such religious expression, unless it would create undue hardship for the company. For example, suppose your company prohibits all employees working with heavy machinery from wearing dangling jewelry, for safety reasons. If an employee’s religious beliefs require her to wear a crucifix, for example, your company might need to make an exception and allow the employee to wear it underneath her shirt while in proximity to machinery.
Certain dress requirements might also be challenging for an employee with a particular disability. For example, a uniform made of tough, scratchy material might cause problems for an employee who uses a wheelchair. In this situation, your company must accommodate employees by modifying the rules, unless doing so would create undue hardship. In the case of the employee who uses a wheelchair, you might allow the employee to wear more comfortable clothing of a similar color and function. (For more on this topic, see our article on reasonable accommodations under the ADA.)
Race and National Origin Discrimination
Of course, employers may not adopt different dress codes for employees of different races or ethnicities. Employers also may not ban employees from wearing traditional ethnic dress (such as a sari, Kente cloth, or native Hawaiian dress) as long as it otherwise conforms to the employer’s policies.
Employers should also be aware that certain policies might have a discriminatory effect, even if that is not the their intent. For example, African American employees have challenged employer policies that require all employees to be clean-shaven, because African American men are more likely to have a skin condition that makes shaving painful. Courts have upheld these challenges, finding that employers may not adopt policies that have a disproportionately negative effect on members of a certain race or national origin.