Published on December 2, 2016
Introduction
Personal dress and appearance is a common way individuals express their personality. This includes political and religious views and is regarded as an important aspect of liberal democracy. Unfortunately, the choices made in attire, hairstyle and other personal appearances may collide with workplace rules and thus result in conflict. This article is a comparative analysis of the relevant labour and equality laws that can impact upon employer dress code and appearance policies within the U.S and European jurisdictions. It is averred that multinational employers must be aware of the laws in foreign jurisdictions.
PART I: United States Law
Federal U.S. law does not directly regulate employer dress codes or appearance policies. However, it does prohibit employers from discriminating against employees based on a number of protected characteristics which for example include religion, where employers must reasonably accommodate the religious practices of employees, unless doing so would result in an undue hardship. Other characteristics or ‘classes’ which are protected include, sex, race and national origin, whilst the list is not exhaustive, these protected characteristics are the most pertinent in relation to appearance policies.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII is the seminal federal law impacting employer dress codes and appearance policies. Generally federal courts have held that an employer may adopt a grooming/appearance policy in accordance with generally accepted community standards that differentiates between men and women (specific requirements may differ) provided it is applied in an even-handed manner and does not impose an unequal burden upon one sex over the other. For example, employer grooming policies requiring male employees to have short hair and imposing a make-up requirement for female employees have been upheld. However, employees may still challenge facially valid employer grooming policies on the basis of federal prohibitions of discrimination. If dress codes have a disparate impact on individuals within a protected classification, employees may be implicated in discrimination and lawsuits can await. Equally, if a dress policy is selectively enforced, (favouring one class of persons over another), questions of liability can be expected or should at the least be within contemplation.
The Equal Employment Opportunity Commission (EEOC) (the federal agency charged with enforcement of Title VII) takes the position that employer appearance policies generally must be neutral, adopted for nondiscriminatory reasons, and consistently applied to persons of all protected groups. If the policy has a disparate impact on a protected class, it must be job-related and consistent with business necessity. For example, height and weight standards may be challenged as having an unlawful adverse impact on certain nationalities due to average height and weight differences. Thus, the imposition of such requirements would need to be shown to be job-related and consistent with business necessity. The EEOC has adopted the position that employers can mandate neutral hairstyle rules provided the rules respect racial differences in hair textures and are applied evenhandedly. Moreover, the EEOC recognizes that employers generally can have a no facial hair policy although an employer may be required to make exceptions for men with pseudo folliculitis barbae (a skin condition that occurs primarily in African-American men) unless a no facial hair policy is job-related and consistent with business necessity.
The EEOC in recent years has focused on employer dress codes/appearance policies and the potential for conflict with the religious practices of employees. In 2014, the Agency issued guidance regarding how Title VII applies to religious dress and grooming policies, and how employers can meet their legal responsibilities in this area. Title VII requires an employer, who is made aware that a religious accommodation is needed, to accommodate an employee whose religious belief, practice, or observance conflicts with a work requirement or policy, unless doing so would pose an undue hardship on the employer. An employer may establish undue hardship by demonstrating that the accommodation would require more than a de minimis cost or burden. Undue hardship may be established for example if the proposed accommodation is costly, impairs workplace safety, decreases efficiency, or negatively impacts the rights of other employees. In addition, undue hardship may also be established where an accommodation would violate rights in a collective bargaining agreement or seniority system. Whilst many employers have developed dress codes to promote their corporate image, the EEOC generally considers a denial of a requested religious accommodation on the ground that it would not further the corporate image to be prima facie evidence of reliance upon customer preference. Through the case law this ‘preference’ has been determined to be “clearly forbidden by Title VII” (Rucker v. Higher Educational Aids Bd., 669 F.2d 1179, 1181 (7th Cir. 1982). Alternatively such a denial may be insufficient in demonstrating that making an exception would cause an undue hardship.
The United State Supreme Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc. , No. 14-86, 575 U.S illustrates how employer dress codes may run afoul of Title VII. In Abercrombie, the Court found that an employer’s rejection of a Muslim applicant who appeared for a job interview wearing a headscarf amounted to unlawful religious discrimination under Title VII. This was so, despite the applicant’s failure to request an accommodation to the employer’s no-headwear policy. The Court stated that while “[a]n employer is surely entitled to have, for example, a no headwear policy as an ordinary matter… Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”
The National Labor Relations Act (NLRA)
The NLRA may impact employer dress codes/appearance policies in workplace settings where employees elect to wear clothing, buttons and the like to show support for or opposition to a Union. The National Labor Relations Board (Board) requires that rules which restrict the right to wear union insignia and clothing be narrowly tailored to the special circumstances justifying maintenance of the rule, and requires the employer to bear the burden of proving such special circumstances. Further, employer dress code policies that can reasonably be construed by employees to prohibit the exercise of Section 7 rights under the Act may be challenged. For example, the Board has found an employer’s dress code that, among other things, prohibited “clothing displaying words or images derogatory to the Company” was unlawfully overbroad – Alma Products Co., Case No. 07-CA-089537
Other Laws
Other laws that may impact employer dress codes include the federal Americans with Disabilities Act, which may require an employer to make exceptions to its dress code policy as a reasonable accommodation for a disabled employee despite the employer’s general right to require a disabled employee to comply with a dress code policy imposed on other employees performing the same job. Additionally, some states and municipalities have laws that may impact employer dress code/appearance policies and may be more restrictive than federal laws.
PART II: INTERNATIONAL LAW-A EUROPEAN PERSPECTIVE
As discussed in Part I of this article, personal dress and appearance is a common and important way individuals express their personality, political and religious views. However, these choices may conflict with workplace policies. Multinational employers have to be conscious of the legal restrictions on such rules and policies imposed by the jurisdictions in which they do business.
United Kingdom (UK)
There are no rules as such on dress codes in the workplace in the UK. Employers are free to set whatever rules they wish, subject to any health and safety laws which may apply in particular occupations. Few private sector employers in the UK have recognised trade unions, but those that do may want to (or, in a few cases, be required to under collective bargaining agreements) consult with unions about any rules they put in place. The same applies to any other employee representative bodies where such exist. The main issues which arise in relation to dress codes relate to discrimination on the grounds of religion or belief (which are protected characteristics virtue of section 4 of the Equality Act 2010). An employer which sets rules that are difficult to comply with for members of a particular faith (for example, rules banning head covering may adversely impact Sikhs and Muslims) can be guilty of indirect discrimination pursuant to section 19, which it would then need to objectively justify in order to stay on the right side of the law – essentially, demonstrating that it had one or more legitimate aims in imposing the dress code, and that this was a proportionate means of achieving those aims. Examples of such legitimate aims include health and safety considerations. In principle an employer could also fall foul of discrimination laws on other grounds, for example applying a dress code only to women but not to men, or applying a code which treated women less favourably than men in some way. The courts have, however, rejected arguments by men that requiring them to wear a shirt and tie at work constituted less favourable treatment, accepting that a uniform code is not discriminatory if it applies a conventional standard of appearance for both men and women. For guidance on the Equality Act 2010 see the ‘Employment Statutory Code of Practice’ issued by the Equality and Human Rights Commission.
France
Under French law, it is rather difficult for the employer to impose dress codes on employees since they must be justified and proportionate in light of the aim pursued. For instance, employers can impose a dress code or a uniform on employees who are in contact with clients. Case law has approved the dismissal of a hotel employee who refused to wear a uniform and the dismissal of an employee who was wearing a pair of shorts under his blouse since he was in contact with customers. Additionally, the employer is allowed – and is even expected – to have employees wear all clothing and protective equipment necessary for safety on the job. However, even in these situations, the restriction must not be discriminatory. For instance, an employer lost in Court to a waiter after he had been dismissed because he was wearing an earring (Cass. Soc. January 11, 2012 No. 10-282013) The employer wrote, in the dismissal letter, that wearing an earring was not compatible with his gender. Even though the waiter was in direct contact with customers, this was judged discriminatory by Courts and the dismissal was voided.
Employers in France are not permitted to impose a dress code or forbid certain outfits for office employees who are not in contact with clients. Likewise, the dismissal of an employee because he is wearing a tattoo or a piercing would very likely be judged unfair by Courts.
Germany
Legal provisions concerning dress codes exist in Germany if a specific dress is required for safety reasons. This includes both employee and customer/client safety. Thus, there exist laws which provide for steel-toed safety boots, a hard hat or a butcher’s chain glove or other tools necessary to protect the employees against dangers in connection with the workplace. Moreover, other laws provide for hygienic standards e.g. in professional kitchens or hospitals.
However, employers may require employees to wear a specific dress or even uniforms. In such cases the dress code is enforceable when it is reasonable with regard to the expectations of clients or others with whom the employer is doing business or to show business identity and ensure consistency throughout the workforce. In this context it is important to know that the works council (if a works council has been established) has a mandatory co-determination right regarding the dress code, i.e. the employer needs the works council’s consent to implement a dress code.
In Germany, the employer has to respect the employee’s general right of personality. Thus, the employer is not allowed to put the employee in an embarrassing situation if he complies with the dress code. If this is the case, the employee may refuse to comply with discriminating or sexist dress codes. A central piece of legislation is the German General Equal Treatment Act 2006, for guidance on the Act see the ‘Guide to the General Equal Treatment Act’ issued by the Federal Anti-Discrimination Agence.
Sweden
In Sweden, there is no law regarding workplace dress codes. However, as employers are entitled to lead and share out working duties etc. they are also entitled to implement workplace dress code policies. It is up to the employer to decide which dress code is suitable and/or necessary in terms of safety at the workplace. For example, a dress code may oblige construction workers to use certain protective clothing while they are working, bankers to use representative clothing and shop salesmen to use certain working uniforms.
But the dress code may not be discriminatory, e.g. prohibit certain religious clothing. This may result in discrimination claims from employees. Further, the dress code may not apply only to certain individuals, but must apply to everyone at the workplace with the same position.
Employees must respect the dress code policy, regardless of whether it is explicitly stated in their employment agreements. Failure to respect the dress code is a breach of the employment agreement, which may ultimately lead to termination of employment. In the end, there will always be an assessment of the “balance of the interests” between the employer’s interest in having a certain dress code and the employee’s privacy interests.
Italy
In Italy, there are currently no laws governing the corporate dress-code. Thus, employer policies may impose specific dress code requirements. All measures taken by employers, including dress-code policies, must respect certain constitutional principles, such as the respect for human dignity and freedom of self-determination, which should be coordinated also with the freedom to manifest one’s religion and the right to express thoughts. Such principles represent a limit to the freedom of private economic initiatives, compliance with which must also be evaluated in relation to the type of activity being performed by employers and employees. In addition, the power of prescribing particular clothing in the workplace must also respect the non-discrimination principle, including gender discrimination. Therefore, employers must consider these principles when drafting a dress-code policy and also when imposing sanctions for violations of policies. In case an employee suffers acts of discrimination, he/she can activate a protection through individual action, or with a collective action through specific associations/organizations.
An employee may recover damages compensation – including non-pecuniary damages – as well as injunctive relief aimed at eliminating the discriminatory conduct and its effects. For example, a manager’s comment to a female worker, who was subject to sexist comments due to her clothing, to wear more suitable apparel, has been considered damaging women’s dignity, resulting in a damage reimbursement. It was also recognized as unlawful conduct to refuse to hire a woman because she refused to work without the hijab, an Islamic headdress, since that different treatment was not justified by the requirements of the job performance.
Conclusion
While employers generally can impose dress codes or appearance policies in the workplace, they must be aware of the laws of the jurisdictions in which they operate to ensure that these policies do not run afoul of these laws.
The Author
This article has been written by Greg Grisham, partner at US law firm FordHarrison. Additional commentary has been supplied by Colin Leckey, Partner at UK law firm Lewis Silkin, Fadi Sfeir, Associate at French law firm Capstan, France, Alexander Ulrich, Partner at German law firm Kliemt & Vollstädt, Petter Wenehult, Associate at Swedish law firm ELMZELL Advokatbyrå, and Emanuela Nespoli, Partner at Toffoletto De Luca Tamajo e Soci, Italy. All firms are members of global HR and employment law firm alliance Ius Laboris.