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As a staffing agency, it is crucial that we stay on top of current employment laws so we can provide the best possible solutions to both our employees and clients. Many of our builder and property management clients have reached out to us for the 4-1-1 on employment law and the impact it has on dress code policy. As the American social and cultural environment changes and evolves, so has our perception on appearance and identity. We have seen this change affect not only our individual perceptions, but American law as well.
If you haven’t stayed up to date on the latest labor laws regarding Title VII of the Civil Rights Act of 1964 and its amendments, we’re here to catch you up. As initially stated in the Title, employers are prohibited from discriminating against employees on the basis of sex, race, color, national origin, and religion. As of 2017, in a case of the 7th U.S. Circuit Court of Appeals (Hively v. Ivy Tech Community College), Title VII was extended to prohibit discrimination against individuals based on sexual orientation. While the 7th Circuit became the first appeals court to rule that Title VII bars sexual orientation discrimination, this case was not the first to rule LGBTQ individuals (Including those of transgender, gender non-binary or gender queer identity) as a protected group under Title VII. Since 2015, the amendment to Title VII has been in place but has become increasingly more important and relevant in recent years.
With younger generations entering the workforce, and more people understanding their rights and fighting for equal treatment, it is not only natural to want to update your dress code but absolutely crucial in order to maintain a legally acceptable policy. We’ve taken the common questions our builder and property management clients have asked us and put together this informative Q&A to help you determine whether your dress code policy needs to be updated.
The most important thing to review in your dress code is to verify that it is gender-neutral. Federal law requires that you have a gender-neutral policy, as to avoid discriminating against any gender or sex. Having a policy that is not gender-neutral, with an unequal burden on a group or individual, is illegal.
In other words, if you require your female employees to wear a bra or undergarment, then a gender-neutral policy would require all of your employees to wear a bra or undergarment. In 2018, an employer in British Columbia faced a Human Rights Tribunal complaint for terminating a female employee for refusing to wear a bra or tank top under her uniform. The employer’s policy required only women to wear bras or tank tops under their uniforms. A gender-neutral policy would have required all employees to wear either a bra, tank top, or undershirt under their uniforms. The gender-neutral policy could have achieved the same objective and would have saved the employer the financial penalties and legal hassle it faced.[1]
What this case taught us is that trying to create a gender-based dress code policy can and will lead to strong legal backlash which might result in unwanted penalties and expenses. The only way to avoid this is to have a gender-neutral dress code policy with the same requirements for all individuals.
Yes, there is no issue with banning visible tattoos in your company dress code policy. As long as you ban ALL tattoos, your policy can include this language. Just be sure to provide reasonable accommodations for those with religious or medical tattoos (more on this later). Individuals in the past have argued that a dress code policy that bans tattoos violates their freedom of speech (i.e. they believe that the First Amendment of the Constitution protects their right to display their tattoos), however, this is entirely unsupported. The First Amendment only protects against government efforts to stifle speech, not employers in the private sector.
As an example of this argument not holding up, in 2015, the Chicago Police Department banned all visible tattoos. Three men with tattoos (which represented their time in the military) refused to cover their tattoos and took their case to court claiming this violated their First Amendment rights. In 2017 the court decided that since this dress code policy equally banned all tattoos and the men’s tattoos did not fall under any of the protected groups in Title VII, their claim that it violated their First Amendment rights was denied. [2]
As long as your dress code policy equally bans all tattoos, the “Freedom of Speech” argument will not hold up in court.
No, restricting certain types of tattoos would likely lead to a case of discrimination. As an employer with a more casual dress code policy, it is understandable that you want to allow your employees their creative freedom. However, you should also be aware that your employees might have some visible tattoos that can be considered offensive or harassing to others. If you allow tattoos in your workplace, your HR should be ready to handle any cases regarding employees with offensive tattoos.
Yes, you absolutely must. To stay compliant with Federal Law, you need to make reasonable accommodation for employees that fall within protected groups. There will be exceptions in every category of your dress code policy, and as the employer, you are required to be aware and able to make reasonable accommodations for these individuals when necessary. As according to Title VII, employers are prohibited from discriminating against employees on the basis of sex, race, color, national origin, religion, gender identity, and medical conditions. For example, someone whose medical condition prevents them from shaving, should not be required to shave. Those whose religious belief dictates that they wear long skirts or head coverings should also be allowed to do so.
Individuals whose background, beliefs, or conditions prohibit or limit them from following any of your dress code policies should be excused from following that policy or policies. Unless breaking a dress code policy can be proven to be harmful or prohibit the employee from doing their job (wearing a hard hat in a construction zone for example), accommodations must be met.
Always maintain your awareness of an individuals’ protected rights and make accommodations as needed.
Stay aware of current employment law and update your policies annually to be certain that your dress code does not violate an individual’s rights. Also be aware of all groups protected under Title VII of the Civil Rights Act of 1964 and be ready to make reasonable accommodations. Finally, when taking disciplinary action for your dress code, make sure you handle it fairly and without discrimination.
[1] Employee Dress Codes, my|HR|Counsel https://www.myhrcounselcompliance.com/blog/2018/9/10/employee-dress-codes
[2] Medici v. City of Chicago, FindLaw https://caselaw.findlaw.com/us-7th-circuit/1859961.html
