Can Employers Discriminate Based on Appearance?

Workplace dress code issues are not uncommon. In states that are "at-will" employment states, your boss can make an employment decision based on any reason, as long as it is not considered a protected characteristic, such as your race or gender. So theoretically, an employer can terminate you for wearing red pants with a green shirt, if he doesn't like your style. But, are there exceptions where making decisions simply based on appearance can cross the line into discrimination?

Dress Code Challenges Under Title VII Anti-discrimination Law

Title VII of the Civil Rights Act of 1964 prohibits many different forms of discrimination in the workplace. It protects against discrimination based on race, sex, religious beliefs, etc., which means employees or job applicants cannot be treated differently based on any protected characteristics. Dress codes enforced by employers can sometimes create situations where, although not overtly discriminatory, tend to single out individuals because of their race or religious beliefs, for instance.

Consider the landmark case, Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, where the court ruled that a "no beards" policy for the Newark Police Department, was discriminatory against the plaintiffs who were Muslim. The dress code at issue had an exception for medical necessity or disabilities, but not for religious beliefs. The police department could not show any undue hardship caused by changing the policy to include a religious exemption. So, its policy was found to be discriminatory.

Gender Stereotyping in Dress Code Policies

Enforcing different dress code standards on male and female employees can cross the line if the difference is not based on a bona fide occupational requirement. In Jespersen v. Harrah's Operating Co., Inc., the plaintiff was a bartender at a casino that had a policy requiring women to wear makeup, but prohibited men from doing so. The plaintiff never wore makeup and objected to the policy. She eventually quit her job because she refused to comply with the dress code. However, the court found that the dress code in that situation was not discriminatory because it didn't place a tougher burden on women. Instead, the policy required all employees to maintain a professional look.

Race Discrimination in Dress Code Policies

Employers usually refrain from intentionally imposing dress codes that only apply to certain races, as that would be obviously discriminatory. However, some dress code policies may have a discriminatory impact on a certain race. Another landmark case, Fitzpatrick v. City of Atlanta, involved a policy that requires men to be clean shaven. However, this type of policy has a negative impact on African-American men who are more likely to have skin sensitivity to shaving. This type of policy has been found to be discriminatory.

Accommodation of Religious Beliefs Regarding Dress and Grooming

A very common challenge to employer dress codes relates to religions that impose strict dress and/or grooming requirements. For example, Native Americans are not allowed to cut their hair and Muslims are required to wear beards and certain types of clothing. Employers' policies cannot force employees to violate their religious beliefs, but instead must make reasonable accommodations.

If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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