Creating a Look Can Cost You

    Brands must beware of the legal challenges that come with enforcing dress codes.

    Creating and enforcing a dress code is a tricky but necessary step nearly every brand must take.

    While there is no legal requirement that an employer adopt a dress or appearance policy, many restaurant and hospitality employers are looking to create a certain image. Let’s face it, customer service and appearance are what restaurant brands sell (in addition to good food). Restaurant employers may not only dictate uniforms, but they may expect a certain style and presentation, which goes beyond wearing uniforms and the company polo shirt.

    Some employers are hesitant to impose strict guidelines for fear of encroaching on employees’ freedom to express themselves. But having no guidelines is often not an option either. Having an appearance and dress policy in place before a tattoo, haircut, or head covering becomes an issue allows a concept to clearly set forth expectations. In addition, a well-written policy can help protect a company's public image, promote a productive work environment, comply with health and safety standards, and even prevent claims of discrimination and harassment.

    The Equal Employment Opportunity Commission (EEOC) has weighed in on this issue. In general, it says an employer may establish a dress code that applies to all employees or employees in certain positions. There are a few possible exceptions:

    • While an employer may require all workers to follow a uniform dress code—even if the dress code conflicts with some workers' ethnic beliefs or practices—a dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.

    • Moreover, if the dress code conflicts with an employee's religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship. 

    • Similarly, if an employee requests an accommodation to the dress code because of his or her disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship.

    The courts are addressing these and other issues. In a recent high-profile case, a jury awarded compensatory damages to a Muslim female applicant who was rejected for a sales position because she wore a headscarf. The retailer required its employees to comply with its look policy that prohibited “caps” to be worn, but did not mention other headgear. The court found that the applicant acted on her belief that the Quran requires women to wear headwear, and that the fact that she wore the scarf to the interview was sufficient for the store to enter into an interactive process regarding religious accommodation. The retailer, which marketed its look, did not introduce studies showing that headscarves would negatively impact the company, and had made other exceptions to the ban on caps.

    Having an appearance and dress policy in place before a tattoo, haircut, or head covering becomes an issue allows a concept to clearly set forth expectations.

    In another case, a restaurant discharged a cashier because her religion, Christian Pentecostal, forbid her from wearing slacks. The applicant allegedly informed the restaurant of her need for religious accommodation and offered to wear a skirt instead of the uniform pants. The EEOC claims that allowing the applicant to wear a skirt would not have cost anything and thus was not an undue hardship.

    Additionally, a restaurant chain paid a server $150,000 after terminating him for having visible tattoos. The employee stated that his sect believed that tattoos symbolized its devotion to its creator. The restaurant’s objection that it wanted a consistent, all-American look did not trump the religious objection.

    Restaurant employers must be prepared to discuss and address requests for accommodation to the dress code, ensure consistent enforcement, and train supervisors to never make knee-jerk decisions when it comes to requests for accommodation. Employers have a duty to reasonably accommodate religious objections, but keep in mind that the need to maintain a certain look is generally not enough hardship to justify blanket refusals.

    There are physical and style differences between sexes, and dress-code policies will reflect this fact. The key for brands is to impose the same level of duty on both sexes, even if individual requirements differ. Obligations should not impose a greater burden on one sex or differ markedly from social norms.

    A bartender once sued her casino employer because its policies required women to wear makeup and prohibited men from doing so. The court concluded that the dress code did not place a heavier burden on women than men or stereotype women, as the dress code required both men and women to maintain a similar professional appearance. Courts also have found that policies requiring men, but not women, to wear ties or allowing women, but not men, to wear earrings do not violate Title VII.

    Another area of developing discrimination claims involves claims that the employee was not stylish, fit, or skinny enough. Obesity is not automatically a disability under the Americans with Disabilities Act, but the EEOC and state agencies are increasingly making such claims, arguing in some cases that obesity was due to health issues or that the employer wrongly perceived the employee as a person with a disability.

    No matter how restaurant employers choose to deal with the dress-code issue, expectations should be clearly stated in writing and readily available to employees. While employers still retain wide latitude, practical, social and legal factors are requiring careful preparation of policies related to dress and appearance, as well as consideration of such requests for accommodation that might have been readily (and safely) dismissed several years ago.

    Andria L. Ryan is a partner at Fisher & Phillips LLP, a national law firm representing management in labor and employment law matters.