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DRESS CODE POLICIES MUST INCLUDE FLEXIBILITY

CyberFEDS - Washington Bureau, October 23, 2007

By Christine Cave

WASHINGTON - Agencies have the right to establish dress codes and grooming standards, but the policies must be applied equitably and include flexibility to meet any unforeseen conflicts with employees' religions, experts advise.

Dress codes should also be fair and balanced so one gender isn't left with an unfair financial burden, said employment attorney Josh Bowers.

"A dress code must state it accommodates individuals with religious requirements and permit accommodation including facial hair and hair length," Bowers said. "The plan must also take into account that men and women dress differently."

Inflexibility is the primary reason agencies run into trouble with dress codes. Bowers said.

"A common problem for agency dress codes is when the plan is being implemented by inflexible people with bias," he said. "That is where litigation begins."

Most EEO complaints are file because the agency:

  • Failed to accommodate an employee's religion.
  • Did not properly balance policy requirements for men and women.
  • Caused employees unnecessary expense to comply with the policy.

"With flexibility and training for managers, those are the sorts of issues that are easy to resolve without litigation," he said.

Agencies can also run into problems if their dress code policy is too broad, Bowers said. For example, a policy that states employees must be well groomed and professional is open to interpretation and may differ between industries and departments. It is better to give concrete examples and state what is prohibited, he said.

"When agencies become large enough, the dress code standard can not be so vague that individuals have difficulty figuring out what is reasonable," Bowers said. "If someone gets transferred and they find what was appropriate attire in San Francisco is not appropriate in Kansas, perhaps there should be a national standard."

Another problem is when men and women are treated differently. Adele Rapport, senior counsel with Richard T. Seymour PPLC, said may sex discrimination cases involve dress code policies that require women to wear nail polish, makeup and skirts but do not have similar requirements for men.

"This poses a financial burden for women because it would be more expensive for women to comply with the standard than it is for men," she said. "In one private industry example, a female won her case on the objection that she was being forced to participate in 'gender stereotyping' when her employer required her to dress more femininely."

Religious accommodation

When it come to religious accommodation for dress and grooming standards, agencies should try to work with employees. They should also consider how much exposure the employee has with the public.

"If someone is in the office and talking to people on the phone and not interacting directly with the public, it would be a violation if they were told they could not wear religious garb," Rapport said.

However, if an employee wants to wear a cross over a federal law enforcement uniform, it may give the public the perception the government supports Christianity. The accommodation might be to have the employee wear the cross under the uniform, she said.

Jeanne Goldberg, senior attorney advisor with the Equal Employment Opportunity Commission's office of legal counsel, said under Title VII, agencies must grant religious accommodation requests absent an undue hardship. However, the standard for undue hardship under Title VII is "much lower" than that required by the Americans with Disabilities Act.

"In the case of a request for religious accommodation under Title VII, the agency has only to [prove] a de minimis expense," she said.

It is important for supervisors to know they can make exceptions to the grooming policy for religious reasons, Goldberg said.

"It may be easy for supervisors to think that because the dress code exists, they can deny a request for accommodation and fail t consider that an exception can be made," she said. "Managers should be trained to know these exceptions exist and when to get advise from their HR or EEO counselor's office or appropriate authority."

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