Dress Codes: When Do Employees’ Rights Trump the Policy?

Published in the New Hampshire High Tech Council’s Newsletter
By: Beth A. Deragon

Many technology companies would say that they do not have a formal written dress code policy or, if they do have a policy, it allows employees to dress in a “relaxed/casual” style. The fact is that if employees are allowed to dress a certain way, whether “business casual” or “relaxed” then the company has a policy and that policy reflects the company culture.

A dress code policy could be specific as to particular positions or apply to the entire workforce. For example, a company might require that its sales personnel wear collared shirts or blouses, but allow employees who do not meet with customers or potential customers to wear polo shirts, but not tank tops. Companies can also require or prohibit certain footwear. For example, a company might prohibit employees who meet with customers or potential customers from wearing flip flops, but allow employees who never interact with customers or potential customers to wear any kind of footwear.

A company can define its dress code and appearance policies as it sees fit as long as it is aware that an employee can ask the company to make an exception to the policy based on the employee’s national origin or sincerely held religious belief. The Equal Employment Opportunity Commission (which enforces claims of discrimination) gives the following example of a potential dress code policy based on national origin: “a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.” In other words, when a company allows employees to dress more casually, then it will be more difficult for the company to find a legitimate business reason to justify the prohibition of ethnic or religious dress.

In EEOC v. Abercrombie & Fitch Stores, Inc. (“Abercrombie”), the US Supreme Court ruled  that when an applicant wears either religious or traditional dress to a job interview, the employer is effectively put on notice of the applicant’s national origin or religious dress requirements. Therefore, it is likely that the company will have to make an exception to its dress code policy unless it can show that the accommodation will cause an undue hardship to the company. While the applicant in the Abercrombie case did not specifically ask to be allowed to wear a hijab to work, it is not uncommon for employees to ask for exceptions to be made to the company’s dress code policy.

A company might argue that valid reasons to deny a request for accommodation could include: maintaining a more uniform look, customers’ level of comfort in dealing with employees wearing ethnic/religious clothing, and importance of customer perception of the business.  However, those reasons are unlikely to support a claim of undue hardship absent credible evidence that customer perception really is what the company believes it to be. An assumption about customer perception will not support the company’s reason for adoption of a policy or denial of a request for a reasonable accommodation. However, clothing that could cause a safety issue due to the nature of the employee’s work could support a denial of the request.

Furthermore, companies that have casual dress code policies – whether formal or informal – are even less likely to be able to justify a request for an accommodation since employees are generally allowed to dress as they like. Companies should review their dress code policies to ensure they are in compliance with state and federal anti-discrimination laws and that it is clear that religious and national original accommodations will be absent an undue hardship to the company. In today’s modern, diverse society, providing accommodations for employees to dress as their religious and/or national origin requires supports a more inclusive, diverse and tolerant workforce.

Beth Deragon is an attorney in the Employment Law Practice and Litigation Group at the law firm of McLane, Graf, Raulerson & Middleton. Beth can be reached at beth.deragon@mclane.com or at (603) 628-1490. She also contributes regularly to www.employmentlawbusinessguide.com.