Discrimination: Is your company dress code legal?

As the triple-digit summer temperatures settle over Kern County, workplace talk often turns to dress codes and some employees who seem to stretch the limits of acceptable “cool” attire. Is it time to dust off the old dress code, or review it to ensure it’s legal and defensible? The answer is both. Employers can set standards for what is appropriate workplace dress. But those standards must not discriminate against employees on the basis of sex, gender identity, including transgender employees and employees in transition, religion, race and physical disabilities. A bill that received overwhelming support in the California Legislature demonstrates how carefully employers must tread as they move to regulate workers’ appearances. Sen. Holly J. Mitchell, D-Los Angeles, is the author of SB 188, commonly called the CROWN Act (Create a Respectful and Open Workplace for Natural Hair.) The bill proposes to make California one of the first states to outlaw workplace racial discrimination based on hairstyles – such as braids and dreadlocks. The bill comes in the wake of a high-profile incident last year in which a 16-year-old New Jersey high school varsity wrestler was told by a referee that he would have to cut his dreadlocks or forfeit his match. The teen complied, but his story went viral, backlashed on the referee and brought hairstyle discrimination to the forefront. There have been many incidents in California and across the nation in which students have been banned from classrooms or events because of the length of their hair or hairstyles. Decades of “tradition” have forced African-American women to use harsh straightening products on their hair and men to keep their hair cut short to comply with employers’ enforcement of “European standards.” Mitchell’s bill notes the historical double standard enforced in the workplace in terms of how black employees are expected to wear their hair, compared to their white colleagues. Basically, non-white workers have been forced to conform to a Euro-centric aesthetic. But it’s not just grooming standards that can trip up employers who desire to project a company “image” through the way their workers dress. Employers may be intentionally, or unconsciously discriminating through dress code requirements. Dress codes should be reasonable, defensible and equitably applied. Is a strict dress code appropriate for a workplace, or would more flexibility boost worker morale, creativity and willingness to collaborate? That depends on the workplace and the workers. But it is a question worth asking and the answer is worth considering. Just this spring, financial giant Goldman Sachs made headlines when it announced that suits and ties were now optional. Long known for its prime and polished employees, the company’s announcement embraced a widespread change that is occurring in the nation’s workplaces. But it’s not just changing trends that are causing employers to reconsider their dress codes. It is changing laws and court rulings. Every aspect of a workplace dress code must be examined as to how it affects workers and if it discriminates. Safety is a “defensible and reasonable” standard. Some workplaces legitimately ban wearing jewelry or require closed-toe shoes, for example. It also is legal for businesses to have rules regarding clothing, hair, tattoos, makeup and piercing, as long as they do not discriminate based on gender, age, race or religious
beliefs. For example, requiring men to cut their hair and beards, and women to wear makeup may violate religious beliefs. Banning head coverings worn by men and women also may discriminate against some workers based on their religion. Restrictions on certain clothing, hair styles or facial hair must have a strong business justification. Accommodating workers’ disabilities must be considered when enforcing dress codes. Employees with temporary or permanent disabilities must be allowed to dress in a way that does not hinder them. Some examples include: An employee who uses a wheelchair may require slip-on shoes, rather than laced. A diabetic employee may need to wear loose-fitting pants to give access to an insulin pump. An employee with skin problems may need to wear soft clothing that does not irritate. A dress code cannot discriminate based on race, color, national origin, gender, pregnancy, religion, disability or age. Requirements that differ between these “protected groups” must not place an undue burden on one over another. Employers should ensure that their dress codes comply with state and federal law, as well as allow room for workers to express themselves.