Does Your Dress Code Discriminate? Have You Addressed Religious Attire, Clothing, or Facial Hair?
Dress codes have long been an area where employers run afoul of the law on religious discrimination. For instance, Abercrombie and Fitch, a national clothing store, famously failed to allow a woman to wear a hijab to work which the United States Supreme Court found unlawful. When we wrote about this issue last, hair styles were the newest way for employers to get in trouble but there is now something newer! New York State recently passed a law, which took effect last month, which prohibits discrimination based on religious attire, clothing, or facial hair.
While obviously bans of certain hairstyles or facial hair would violate this law, employers need to delve deeper into their dress codes and grooming policies. While the language may be vague and lawful on its face, management’s application of the law may be discriminatory. For instance, many dress codes require a “clean and professional” image. Application of such nebulous standards invites challenges.
Different managers may interpret this policy in different ways. For instance, one manager may believe a man with long hair does not present a “clean and professional image” whereas a woman with long hair does. If the manager disciplines the man or asks him to cut his hair, this would be a clear discriminatory application of the gender-neutral policy. Simply put, the manager is treating the man different than the woman based on gender stereotypes. By the same token, a manager may believe a clean shaven appearance is a must for a “professional image.” Without special circumstances, this is a violation of this new law and may adversely impact certain religious groups who traditionally wear facial hair.
Like many laws and protections, even if the employer’s policy is lawful, the next question is whether management is enforcing the policy in a lawful way. Employers must continue to train managers on this issue to ensure fairness and understanding by those who actually enforce the policies.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.454.0560.
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