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April 30, 2012

How Do I Avoid Potential Discrimination Issues With My Dress Code?

In the second of a series of three blogs regarding dress codes, we will be reviewing discrimination.  This is certainly an item of consideration.   Below are some of the areas you want to think about when drafting your policy.

4.            Disability Discrimination

a)            Dress and Appearance

Dress or appearance standards that adversely affect or otherwise screen out qualified disabled applicants or employees have been found to be discriminatory.

Examples:

i.              Excluding applicants or discriminating against employees because of obesity may be illegal.  Severe obesity may be a disability under the ADA.  Such cases would be examined on a case-by-case basis.

ii.             Regarding an individual as disabled because of obesity may also be discriminatory.  For example: an ADA violation was found where an obese applicant for a bus driver position was regarded as disabled because it was believed she could not move appropriately in case of an accident.  She was otherwise qualified for the position based on her driving record, experience, and references.

iii.            Failing to hire an applicant due to his facial disfigurement can constitute disability discrimination.

5.            Religious Discrimination

Title VII requires that organizations must accommodate an employee’s religious beliefs and practices unless an undue hardship is created.

Examples:

The following practices have generally been upheld:

a)            An employee was transferred to a janitorial position after refusing to shave his beard for religious reasons.  The company contended that the issue was safety, as the beard did not permit a proper fit of a respirator.

Discrimination has been found where:

a)            A nurse had been required to wear a nurse’s cap without a tight fitting scarf underneath (her religion required that her head be covered).

b)            A hair salon had refused to allow an employee to wear a yarmulke to work (Jewish skullcap).

c)            An airport had refused to allow security workers to wear headscarves (as required by their religion).

6.            Racial Discrimination

Charges by employees alleging that dress and grooming standards violated their freedom of expression have generally been upheld.  Expressions of cultural heritage are typically not protected by Title VII.

Examples:

a)            African-American employee charges that the company dress code infringed on their black pride and culture were not upheld.

b)            Title VII did not protect an employee’s wearing of nose jewelry, which she contended was an expression of her Mexican Indian heritage.

7.            What about state and local laws?

Employers must also ensure that dress and appearance policies meet state and local legal requirements.  For example:

a)            California does not allow employers to prohibit employees from wearing pants in the workplace;

b)            Wisconsin requires organizations to state their dress and grooming requirements at the time of hire;

c)            The District of Columbia (as well as numerous localities) prohibits discrimination based on an individual’s appearance, including style of dress or hair.

My blog on Wednesday, May 2, will continue areas to consider when drafting your dress code including the “hygiene” factor.  Stay tuned!

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