Strasburger.com Labor & Employment Newsletter


Jana Woelfel
Jana Woelfel

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“Cocktail Waitress in a Dolly Parton Wig” Need Not Apply

Anyone who has ever spent much time with teenagers could confirm the adage that it is impossible to legislate taste. Any HR professional charged with enforcing a company’s dress code could confirm that it isn’t always intuitive to today’s workforce what is appropriate for the workplace.

Sometimes policies are very explicit, such as “no visible cracks, front or back.” Other policies suggest that a “professional appearance must be maintained at all times.” But a more ambiguous policy may subject HR to efforts to educate employees who just can’t comprehend what is professional in their workplace. But some fashion choices involve more ambiguity. For example, high heels versus stiletto heels. How high is too high? Three inches? Four inches? Six inches? It often depends upon the workplace. What works in advertising may very well be inappropriate for a Big Four auditor, and vice versa.

Thus begins the debate on how much detail should be in a dress code. There can be legal issues associated with that decision. Sexual discrimination claims can plague policies that differentiate substantially between men and women or impose a much greater burden on women than men. However, societal norms are generally upheld as nondiscriminatory by courts, even if the mandate only affects one gender, e.g., a requirement that women wear makeup.1 More often, successful challenges to dress codes come from religious2 3 or disability4 discrimination claims. Unfortunately, a poorly conceived dress code also can subject an employer to worldwide ridicule. An example of this played out across the World Wide Web in the past month.

UBS is a Swiss based financial services company with offices worldwide. Financial services companies have long been bastions of conservative dress, even as much of the remainder of the business world embraced the trend towards business casual. It is fair to say that UBS has long striven more towards a standard of understated elegance as opposed to the proverbial “cocktail waitress in a Dolly Parton wig.” Rather than leave matters to the employees’ taste and discretion, UBS chose to implement a detailed 43 page dress code.5 6 When leaked to the web in mid-December, the policy was widely ridiculed.

Some of the more mocked items include directives to wear underwear that matches an employee’s skin-tone, a requirement that wrist watches must be worn at all times to signal a concern for punctuality, a suggestion to apply perfume directly after a hot shower while the pores are still open, a directive to clean one’s eyeglasses to remove smudges, and encouragement to male employees to use skin cream. Among the “don’ts” was wearing green, blue, or black nail polish, wearing more than seven items of jewelry, and eating garlic or onions. Grooming guidelines were included in the event employees needed guidance in this area, and include at least monthly hair trims for men, not showing roots for female employees who color their hair (men are instructed not to dye their hair), and the regular trimming of toenails to extend the life of stockings is encouraged.

By and large most of the restrictions in UBS’ 43 page dress code don’t violate the law. An employer generally may specify acceptable colors for nail polish, may forbid perfumes, and may require neat, well-kempt clothing and hair. However, prohibitions against “too conspicuous religious symbols,” another prohibition contained in UBS’s 43 page dress code can run afoul of Title VII’s prohibition against discrimination on the basis of religion. Disney faced a similar problem last summer when the company forbade a restaurant hostess at Disney’s Grand Californian Hotel from wearing a hijab or head scarf where customers could see her. The employee filed suit7 claiming religious discrimination, but the outcry and widespread media attention may have been more damaging to Disney than the single case. Even more recently the EEOC filed suit in a similar case in Virginia after a moving and storage company refused to hire a man whose lengthy dreadlocks did not comply with the company’s mandate for “neat, clean, trimmed hair.” The employee claimed his Rastafarian faith prohibited him from cutting his dreadlocks and the EEOC has filed suit.8

Employers often struggle with the need to explain to employees, especially employees of different generations, the specific expectations for professionalism in the workplace. Inevitably, there are some employees whose definition of acceptable professional attire is different from the employer’s. However, a prudent employer will weigh the legal issues associated with implementing a dress code with the practical issues of going to a UBS-extreme and subjecting the company to ridicule. In the modern electronic age, having an employment policy “go viral” is rarely a good thing.

After nearly a month of worldwide derision and mockery, including humorous PowerPoint presentations with policy highlights, YouTube videos, and write-ups in major newspapers including the Wall Street Journal, UBS announced that it will issue a new, abbreviated dress code which reportedly states in substantive part “Men must wear a dark suit, white shirt and red tie. Women must wear the female equivalent of this.” While the revised guide has not been officially rolled-out, we feel certain the new guidelines will omit toenail clipping suggestions.

1See, Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (holding that a Harrah’s Casino policy requiring female bartenders to wear makeup was not discriminatory).

2A link to the EEOC press release regarding a $150,000 settlement paid by Red Robin Gourmet Burgers to an employee with tattoos encircling his wrists as part of his Kemetic religion, an ancient Egyptian faith, may be found at www.eeoc.gov/eeoc/newsroom/release/9-16-05.cfm.

3A link to the EEOC press release advising that the EEOC had filed suit against Alliance Rental Center in Dallas federal court for terminating an employee who refused to wear a red shirt on Fridays to show support for the troops. The employee objected based upon his faith as a Jehovah’s Witness from expressing opinions on military affairs, may be found at
www.eeoc.gov/eeoc/newsroom/release/9-23-09f.cfm.

4The EEOC cites a number of examples where it would be a reasonable accommodation to exempt a disabled employee from following the dress code at
www.eeoc.gov/facts/performance-conduct.html#dress. Those include:

Where an employee’s disability makes it difficult for him to comply fully with a dress code, an employer may be able to provide a reasonable accommodation.

Example 42: An employer requires all of its employees to wear a uniform provided by the employer. An employee with quadriplegia cannot wear this uniform because he cannot use zippers and buttons and because the shape of the uniform causes discomfort when he sits in a wheelchair. The employee tells the employer about these difficulties and informs the employer about manufacturers that specialize in making clothes for persons with disabilities. The individual shows the employer a catalogue and together they are able to choose items that approximate the uniform, thus meeting the needs of both the employer and the individual. As a reasonable accommodation, the employer provides the employee with the specified uniform.


Example 43: An employee is undergoing radiation therapy for cancer which has caused sores to develop. The employee cannot wear her usual uniform because it is causing severe irritation as it constantly rubs against the sores. The employee seeks an exemption from the uniform requirement until the radiation treatment ends and the sores have disappeared or are less irritating. The employer agrees, and working with the employee, decides on acceptable clothes that the employee can wear as a reasonable accommodation that meet the medical needs of the employee, easily identify the individual as an employee, and enable the individual to present a professional appearance.


Example 44: A professional office requires that its employees wear business dress at all times. Due to diabetes, Carlos has developed foot ulcers making it very painful to wear dress shoes. Also, dress shoes make the ulcers worse. Carlos asks to wear sneakers instead. The supervisor is concerned about Carlos’s appearance when meeting with clients. These meetings usually occur once a week and last about an hour or two. Carlos and his doctor agree that Carlos can probably manage to wear dress shoes for this limited time. Carlos also tells his supervisor that he will purchase black leather sneakers to wear at all other times. The supervisor permits Carlos to wear black sneakers except when he meets with clients.


If the employee cannot meet the dress code because of a disability, the employer may still require compliance if the dress code is job-related and consistent with business necessity. An employer also may require that an employee with a disability meet dress standards required by federal law. If an individual with a disability cannot comply with a dress code that meets the “business necessity” standard or is mandated by federal law, even with a reasonable accommodation, he will not be considered “qualified.”

Example 45: An employer, pursuant to an OSHA regulation, requires employees to wear steel-toed boots. An employee has severe burns on his feet and legs that prevent him from wearing these types of boots, no accommodation is possible, and so he asks for an exemption. The ADA does not prevent employers from complying with other federal laws, including the Occupational Safety and Health Act which requires employees working in certain jobs, industries, or positions to wear particular items of clothing or protective gear. Under these circumstances, the employer may insist that the employee wear steel-toed boots, and because the employee cannot comply with this rule he is not “qualified.”


5A link to the dress code (in the original French) which appears to have been professionally printed may be found at: http://www.letemps.ch/rw/Le_Temps/Quotidien/2010/12/09/
Culture%20&%20Societe/ImagesWeb/Dresscode_F.pdf
.

6A link to an electronic translation of the policy may be found at:
http://thefinanser.co.uk/files/ubs-dress-code.pdf.

7See, Boudlal v. Walt Disney Co., pending in California federal court.

8A link to the EEOC’s press release regarding the court filing may be found at:
www.eeoc.gov/eeoc/newsroom/release/9-21-10c.cfm.


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