GPSOLO January/February 2010
You’re Going to Wear That?
Appearance in the Workplace
When the 2005 champion women’s lacrosse team from Northwestern University was photographed with the president at the White House, its members drew fire because several of the women were seen wearing flip-flops. The CEO of an Internet video service bragged in the New York Times about how his decision to work for Amazon was premised at least in part on his encountering an employee in the elevator wearing a T-shirt, jeans, and flip-flops. A lawyer in D.C. was so frustrated with “business casual” attire in the office that he introduced “Tie Tuesday” in his firm.
The arrival of Generation X-ers, Generation Y-ers, and Millennials has altered the appearance and attitudes of the workplace. Even a casual observer sees the difference in schools, stores, businesses, and law firms. The change is not just about whether men wear suits and ties or women wear skirts. The change in appearance involves clothing as well as all kinds of “body art” such as piercings, tattoos, and other body adornments.
According to a 2006 report in the Journal of the American Academy of Dermatology, nearly a quarter of Americans ages 18 to 50 have at least one tattoo, and one in seven has at least one body piercing. The study also revealed that tattooing was equally common in both sexes, but body piercing was more common among women. Most notably, nearly one in ten experienced discrimination in the workplace related to body art.
When does one person’s “body art” become another person’s graffiti? When is an employer required to accept body art, and more importantly, when is an employer permitted to restrict its appearance in the workplace? What freedom does an employer have in establishing a dress code and extending that code to hair, tattoos, piercings, or other body adornments? Can an employer establish a “corporate culture” and promulgate a dress code consistent with that culture? Does the employer’s need to generate revenue trump its employees’ liberty to appear howsoever they wish?
The Legal Background
Courts addressed appearance codes initially in the context of the free exercise of religion guaranteed by the First Amendment of the U.S. Constitution. In Goldman v. Weinberger, 475 U.S. 503 (1986), Dr. S. Simcha Goldman, an Orthodox Jew, was ordered not to wear a yarmulke while on duty as a clinical psychologist at an Air Force mental health unit. The Supreme Court held that the First Amendment anti-establishment clause does not require the military to accommodate religious practices that would detract from the uniformity sought by military dress regulations.
Similarly, in Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme Court held that a county regulation limiting the length of police officers’ hair did not violate any right guaranteed the policeman by the Fourteenth Amendment. Subsequent decisions have made it clear that weighing individual civil liberties against the needs of entities such as the military and the police is vastly different than in a purely civilian environment.
Other dress code challenges have arisen under Title VII of the Civil Rights Act of 1964, which prohibits discrimination by most employers on the basis of race, color, sex, or religion. (Title VII applies only to employers of at least 15; however, many states have anti-discrimination laws that proscribe similar discrimination for employers of as few as four employees.) Because an employer can “accommodate” religious practices, such discrimination is treated differently under Title VII than other types of discrimination. The employer must accommodate its employees’ religious beliefs so long as the accommodation will not cause an undue hardship on the employer.
In Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), the court ruled on a challenge to a “no beards” policy for the Newark Police Department, which had an exception for medical necessity or disabilities, but not for religious beliefs. After two Muslim police officers challenged the policy, the court rejected the police department’s undue hardship allegations in the absence of a showing of the adverse effects of a religious exemption versus a disability exemption.
A dress code policy overtly based on sex is prima facie illegal unless the employer can demonstrate the existence of a bona fide occupational qualification requiring an employee to be of a particular sex. The existence of a bona fide occupational qualification is found generally only where the sex classification is required to preserve the essential nature of the business.
Professional offices often require dress that establishes the credibility of the professional, and thereby reassures the client of the veracity and reliability of the advice. This is true whether discussing law offices, accounting offices, or even medical offices. In fact, the white coat of the physician is an icon that implies credibility and the qualification to provide medical advice.
Such icons, however, are vanishing from the workplace, and it is becoming increasingly important to establish credibility and competence without relying on external symbols such as worsted wool suits, expensive ties, well-coiffed hair, and imported leather shoes. The client and the young lawyer of today do not always view these symbols as synonymous with good legal advice; in fact, clients may get the opposite impression—the notion that the advice is overpriced, overblown, and perhaps even irrelevant.
Sometimes not everyone can agree on what the “icon” represents, and this can generate other legal confrontations. For example, it was found in Hodge v. Lind, 88 F. Supp. 2d 1234 (D.N.M. 2000) that a sheriff who learned that wearing a baseball cap backward “could” be a symbol of gang activity could not rely on that information to remove a youth from a county fair after the youth refused to turn his hat around. In addition, there are a significant number of cases undermining the enforceability of dress codes for educators and students based on the repeated finding that dress is unrelated to educational efforts.
Gender affinity and gender identification claims present even greater challenges to the enforceability of dress codes. Dress codes presume normative behavior based on stated social values and stereotypes. Title VII prohibits both sex discrimination and gender stereotyping. The poor implementation of a dress code can be conducive to gender stereotyping.
The prohibition against gender stereotyping goes beyond dress code, tattoos, and other body adornments. Employers who require women, but not men, to wear makeup without a bona fide occupational requirement can face viable discrimination claims as well. Conversely, preferential treatment for those who conform to normative styles of dress and appearance is common. According to a survey of nearly 3,000 employers done in 2008, 41 percent stated that people who dress better or more professionally were promoted more often than others. Thus, even reverse discrimination claims are possible for those left behind for allegedly failing to comply with dress codes.
Toward Best Practices
So what are best practices for employers who want to set standards or policies for physical appearance? Any approach starts with the recognition that the important dynamic is not just the employer/employee relationship but also relations between employees. Any perceived disparate treatment reduces employee morale and productivity. It is important, then, that an employer send a consistent message and enforce any appearance policy equally and evenly.
A second important concept to keep in mind is that dress and body adornment are frequently tied to gender identification—and unless gender identification is pertinent to the essence of the business, no policy should distinguish between men and women. A proscription against “tight-fitting” or “revealing” clothing must extend to both women and men. A policy regarding pierced ears has to be applied to both genders. Where all hair is to be contained in a hairnet, even male employees with beards must somehow contain the beard, or the employer must prohibit all facial hair that cannot be contained. A dress code limiting the visibility of tattoos has to extend to all employees.
Third, any policy has to be reasonable. A policy that prohibits women from wearing slacks even in the dead of winter is not likely to be enforceable, especially in northern climates where forcing someone to wear a skirt in January can be downright mean.
An employer needs to be sensitive to the needs and trends of its workforce. An employer imposing a more conservative dress code is far less likely to recruit younger prospective employees—or even to keep the ones it has. An inability to recruit young talent can hurt the future of almost any commercial enterprise. It is entirely possible to create an environment conducive to good relations between all employees, hire young talent, and not discriminate between employees on impermissible bases.
Finally, dress codes should not impose an implied standard of sexual conduct. On the one hand, an employer should strive to keep sexual conduct and gender stereotypes from affecting both day-to-day operations and major policy decisions. Employees who are overly flirtatious are going to generate hostility from co-workers of both sexes, if not apprehension from opposite-sex workers who may fear an accusation of sexual harassment. On the other hand, given that people tend to spend most of their waking hours on the job, it should not be a surprise that many employees find their mates from the workplace. Thus, the dress code should not keep employees from being able to look or feel their best.
Questions to Ask in Formulating a Policy
Here are a few questions to ask when developing a policy for personal appearance.
Consider your environment. Are your summers unbearably hot? Are your winters bitterly cold? Do your employees tend to take public transportation to work (so that they might want to change footwear in the workplace)? Is your office in a downtown location, or are you suburban or rural?
Think about your clientele. Who are your clients? What do your clients expect their lawyers to be wearing? What do your clients wear to their appointments? Do you appear regularly in court, or are you doing mostly transactional or consulting work from your office? When you attend networking functions, what are others wearing? Are you dressed in a manner that would make others view you as a professional?
Know your employees. Do you have an older staff? Do you have a younger staff? How do they get along? Are there any hot-button issues? Do you have a framework within which they can tell you about their issues? Is there any employee with body art that could be offensive to other employees (such as swastikas or offensive words)?
Go slowly. You do not need to change your dress code suddenly. You can and should first ask your employees about their own preferences. Do they believe a dress code is necessary? Have they expressed reluctance to conform to a dress code? Have they complained about any employee’s body adornments? Keep in mind that fashion is fickle. No sooner had the “business casual” trend caught on than some lamented the inability to “dress up” for work, and the trend started to shift back the other way.
Appearance is reality. No matter how hard you try to convey an image, what will stick in the minds of your clients, your opponents, your colleagues, and your employees is how you appear. What are they telling you about how you come across? Are you coming across like you are intolerant? Do you appear to be caught up in trifling issues? Do you appear to be using your appearance unfairly or to distract others?
This past July, a British public relations firm decided to do away with dress altogether in a publicity stunt. It instituted a “Naked Friday,” in which everyone worked without clothing of any kind. The firm members observed that working naked forced them to deal with each other in a new and different way. It also emphasized the fact that dress codes, tattoos, piercings, and any kind of “adornment” are about appearances, and appearances can be deceiving.
Assumptions people make about others premised upon their appearance are usually wrong, and jumping to conclusions results in stereotypes and all the prejudice that accompanies such snap judgments. That’s just what leads to claims and lawsuits. Dress and appearance codes are only a means to an end, not a goal. Your appearance code should be a manifestation of the culture of your workplace. Once you are sensitive to the issues and know what your firm’s corporate culture is, you can develop your appearance code. After all, getting past appearances is what makes for a productive workplace.