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Fashion tip: Don’t overdo grooming and dress standards

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in Discrimination and Harassment,Employment Law,Human Resources

If you have a strict grooming policy or are considering implementing one, make sure you first understand what you can and cannot require employees to wear or what grooming standards you can legally enforce.

Employees can and do sue when their employers try to impose rules that interfere with religious beliefs, reflect sexual stereotypes or are simply demeaning. (See the box below for some examples of employers that have wound up in court because of their employee-appearance policies.)

Those lawsuits raise an interesting question: Are there any limits on the dress and grooming standards an employer can impose on employees?

Generally, an employer has the right to require its employees to follow reasonable workplace appearance, grooming and dress standards. Under most circumstances, an employer can appropriately discipline or terminate an employee who runs afoul of such a rule. This general rule, however, is sometimes limited by equal employment opportunity laws against religious discrimination or sex discrimination.

Religious discrimination

According to the EEOC Compliance Manual on Religious Discrimination, “An employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.”

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.

Undue hardship is a low standard—the proposed accommodation need only pose more than a de minimis cost or burden. At least one court, the 1st Circuit in Cloutier v. Costco Wholesale Corp., has held that granting an exemption to a dress and grooming policy does pose an undue hardship.

Anyone who has ever walked through a shopping mall knows that Abercrombie & Fitch portrays a certain image. Anyone who has visited Walt Disney World knows that it goes to great lengths to project a clean-cut image.

However, unless an employee can prove that the company promotes an image and maintains a certain “look policy” because of a preference against a certain religion, they’ll have an uphill battle proving that a policy that is neutral on its face discriminated against a particular job applicant.

Sex discrimination

The best practice is a gender-neutral dress and grooming standard. An employer may impose different standards for men and women, but only if neither gender is disproportionately burdened by the gender-specific rule.

Make sure your policy is motivated by a legitimate business interest and is not intended to favor one gender over another.

Carefully consider how your policy applies to transgender employees. A rule that discriminates against an employee for failing to adhere to a sex-based stereotype may run afoul of Title VII. Indeed, while transsexuality and transgenderism are not protected classes in and of themselves, men or women who fail to conform to sexual stereotypes about how their gender is supposed to look and act might be protected by Title VII’s prohibition against sex discrimination.

As with all policies, neutrality is the best practice. If you are considering implementing a dress or grooming standard, have an employment attorney look it over before you roll it out to employees.

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