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Dress codes: Strip away discrimination, ‘uniform’ dangers

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in Compensation and Benefits,Employment Law,Human Resources

If your business is image-driven, now's the time to take a closer look at how you regulate employee appearance. Reason: An increasing number of lawsuits are successfully challenging employers' dress-code policies.

Latest example: This fall, employees of Polo Ralph Lauren stores sued in California federal court, accusing the company of requiring employees to buy and wear clothes from the company as a condition of employment. The workers said the policy in effect required them to wear uniforms. And California, like some other states, requires employers to foot the bill for employee uniforms. Attorneys are now seeking class-action certification in the lawsuit.

Because of that suit and others like it, the California labor commission is investigating dress policies at several national retailers. Employment attorneys say a California crackdown will have repercussions for other states. The National Retail Federation says this new scrutiny of retail dress-code requirements could shift what's been standard industry practice for years.

Who pays for required dress?

Federal law says companies can require their employees to pay for uniforms or other on-the-job dress, as long as the cost doesn't pull workers' pay below the minimum wage. But some states, such as California, have more employee-friendly laws that require companies to pay the entire cost of employee uniforms. And California defines "uniform" as any clothing of a specified design or manufacturer, including a specific high-end fashion brand.

In the Polo Ralph Lauren case, one sales associate alleges she had to spend $7,000 of her $22,000 annual salary last year to satisfy rules that she wear the latest seasonal Ralph Lauren outfits and accessories to work.

It's common for companies to give employees a wardrobe allowance. Others require that employees buy clothes they're expected to wear, usually at a discount.

Advice: Check with your state labor department to see if your state has one of these pay-for-uniform laws. (Find your state labor office at www.dol.gov/ esa/contacts/state_of.htm.) If it has such a law, revisit your policy to see if it would run afoul of this latest controversy.

Business reason or dressed-up bias?

Beyond deciding who pays for uniforms, you must decide if your dress code really unifies appearance and promotes the company, or it's just dressed-up discrimination.

Courts have typically said you can require dress standards as long as you can prove sound business justifications and the standards don't affect one group of people more than another.

Dress policies designed to protect safety and health are more likely to withstand court scrutiny than those based on customer preference. And employees who challenge a dress code on the basis of medical or religious necessity (people who wear turbans, for example) are more likely to prevail than those who challenge your policy based on mere personal preference (say, males with long hair).

Safety issues prevail

In some cases, you can be held liable for a too-loose dress code. Specifical1y, you could be sued for failing to require workers to wear helmets, shoes, safety glasses or any special clothing necessary to protect them from workplace accidents. You also need to ban certain accessories, such as jewelry that may catch in machinery.

Example: A company's "no-beard" policy survived a lawsuit by a Sikh machinist because the employer showed that the beard interfered with the fit of a respirator, which the employee was required to wear.

When safety is involved, make sure all workers are aware of your policy, and spell out the penalties for violating safety-related dress codes.

Accommodate religious attire

Since 9/11, courts are also looking closer at claims of religious bias. According to Title VII, you must "reasonably accommodate" workers who wear religious clothing as long as it does not impose an "undue hardship" on your business. An undue hardship would involve anything that (1) affects your company's image; (2) poses a safety or health risk; (3) adversely affects employee morale and productivity; (4) forces you to show favoritism to a religious employee; or (5) violates a law or statute.

You must accommodate an employee's religious practices only when they're based on a bona fide belief. To qualify, the belief must only be sincerely held. The employee doesn't have to belong to an established religion. But you can specify that religious clothing be neat, clean and in a color that doesn't clash with your company uniform.

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