Workplace Uniform Policies – Be Aware of Special Considerations

In 2015, Abercrombie & Fitch attracted significant media attention surrounding a Title VII religious discrimination challenge brought against the company for its now-infamous “Look Policy.”[1] Samantha Elauf, a practicing Muslim, applied for a position in an Abercrombie store in Tulsa, OK. Because of her religious beliefs, Elauf wore a headscarf, also known as hijab.  Abercrombie’s uniform policy, however, prohibited its employees from wearing “caps.”[2]  When the interviewer requested clarification from Abercrombie’s district manager as to whether Elauf’s headscarf would pose an issue, the district manager responded that it would violate the look policy and directed the interviewer not to hire her.

The Equal Employment Opportunity Commission filed suit on Elauf’s behalf, alleging that Abercrombie’s policy violated Title VII’s prohibition on religious discrimination.[3]  The case eventually made its way to the U.S. Supreme Court, where the late Justice Scalia noted in the decision:

An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious … practice,” it is no response that the subsequent “fail[ure] … to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.[4]

Some employers, similar to Abercrombie, may wish to implement a uniform policy consistent with a desired corporate image. Other employers may seek to promote a professional atmosphere or to improve employee morale. Abercrombie demonstrates the risks that employers may face from a vague or poorly written policy on religious or other grounds.

Acceptable Uniform Policy Standards

The majority of dress code or uniform cases have been brought under Title VII, alleging that a dress code discriminates against employees on the basis of race, color, religion, gender or national origin.   Various sources endorse certain criteria that may aid employers in avoiding dress code litigation and, in the event of litigation, ensure that a defensible policy is in place:

(1) Impose written dress code policies that define as clearly as possible your expectation that employees will adhere to acceptable personal hygiene, health, and safety standards.  While unwritten policies are enforceable, a written policy promotes understanding by the workforce as well as the perception that employers are not acting in an arbitrary manner.

(2) Review dress code policies annually in light of changing social expectations and norms, antidiscrimination laws, collective bargaining agreements, and any new statutory requirements imposed by local, state and federal law.

(3) Ensure that the dress code policies (a) apply equally to male and female employees, taking into account reasonable differences between the sexes, and (b) do not subject female employees to sexual harassment.

(4) If you have a relaxed dress code or “dress-down” days, establish minimal standards for casual work attire.

(5) Notify job applicants of any appearance requirements before hiring.

(6) Apply and enforce dress code policies uniformly.

(7) Implement reasonable accommodations whenever possible when an employee objects to a dress code policy, paying special attention to situations in which an employee might raise a discrimination claim.

(8) Document any situation in which a reasonable accommodation cannot be achieved and the reasons why the accommodation may not be achieved.

(9) Avoid justifying a dress code policy solely on the basis of the company’s concerns with customer satisfaction and the business’s public image.

(10) Establish a procedure for alternative dispute resolution (e.g., mediation, arbitration) to facilitate resolution of a controversy and possibly avoid litigation.[5]

More generally, “an employer developing a dress/grooming policy should identify a legitimate business-related reason for the policy and ensure that the policy is flexible enough to accommodate religious practices and is sensitive to racial and ethnic concerns.”[6]

Conclusion

If an employer requires uniforms, a clear, concise, documented policy that is cognizant of ethnic, religious and gender considerations is the key to a legally defensible policy. Remain aware of employee concerns.

[1]See Sarah Kaplan, “The rise and fall of Abercrombie’s ‘look policy’, The Washington Post, Jun. 2, 2015, https://www.washingtonpost.com/news/morning-mix/wp/2015/06/02/the-rise-and-fall-of-abercrombies-look-policy.

[2]Abercrombie’s “look policy” did not define “caps.”

[3] The parties agreed that Elauf’s wearing of a headscarf was a “religious practice” for purposes of Title VII.

[4] E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015).

[5] Barbara S. Magill. Workplace Appearance, Workplace Privacy: Real Answers and Practical Solutions, 2d ed. 2003 WL 25322920.

[6]Id.