Many workplaces have some form of a dress code for their employees. But, in light of legal and cultural developments over the summer, now is a good time for businesses to take a look at their existing policies and how they enforce them.
Gender-Based Dress Codes
A recent Supreme Court case highlights the futility of gender-specific dress codes. In June, the Supreme Court decided the case of R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. In that case, an employee who had begun working as a funeral director when she identified as a male, transitioned to female, and was subsequently fired, ostensibly for failing to adhere to the funeral home’s dress code for men. Aimee Stephens complied with the dress code for women, but the funeral home took the position that she was a man, notwithstanding her gender transition, and must therefore wear a suit. The Supreme Court held that the company in fact fired Stephens based on her transgender identity, in violation of Title VII of the Civil Rights Act of 1964. Even if transgender status is not at issue, dress codes that specifically dictate what different genders should wear risk challenges from employees who do not confirm to traditional gender norms.
Political Messages on Clothing
Around the same time the Court issued its decision, nationwide protests began over police brutality. Such messages of protest have recently started to impact workplace dress codes as employees return to work amid the ongoing pandemic, because facemasks have become a venue for personal expression. A case in point is employees at Whole Foods, who, citing R.G. & G.R. Harris, brought a class action lawsuit arguing that they were discriminated against in violation of Title VII when they were disciplined for wearing masks that said, “Black Lives Matter.” Whole Foods argued that it has a company-wide policy against wearing clothing with words on it, but according to the employees, this policy has been inconsistently enforced. They claim the company allowed employees to wear clothing that displayed pictures of cartoon characters or expressed support for other causes in the past, and only recently selectively cracked down on employees who expressed support for the Black Lives Matter movement.
Lessons for Employers
In general, outside of a law enforcement, prison, or military context, employers will face difficulty in defending legal challenges to dress codes or uniform policies. For example, courts have already been skeptical for many years of dress codes that do not make exceptions for workers’ religious beliefs, even when those policies are applied equally to all employees, and even if the religion at issue is not one most people have ever heard of. Added to that, employers must now consider messages that may appear on facemasks, as well as what they consider acceptable clothing among their employees of different genders. If employers have generally been lax in their enforcement of a dress code in the past, a renewed commitment to disciplining employees who violate the policy runs the risk of appearing retaliatory.
In light of these recent developments, business owners should take the opportunity, as they begin to reopen, to re-evaluate their dress codes. Of course, each workplace is unique, but one solution would be to do away altogether with any gender-based guidelines for clothing. A medical practice, for example, could have everyone wear gender non-specific clothing, like scrubs. As for policies prohibiting political messages, one solution may be for a business to simply provide masks to its employees and mandate that everyone wear the same one.
Consulting with an employment lawyer can help businesses reopen the right way, minimize risk and avoid lawsuits.
Valerie K. Ferrier, Partner, is an attorney and head of the Labor & Employment Practice Group at Martin Clearwater & Bell LLP. For more information, visit mcblaw.com.