By Laurie L. Johnston

Dress codes and appearance policies are common in the workplace. These policies serve a variety of purposes, from maintaining safety standards to creating a brand image. While dress codes and appearance policies are permissible, employers and employees should be aware of potential pitfalls when implementing and enforcing these policies.

Discrimination Laws

Employers should ensure that their policies do not run afoul of discrimination laws. Frequently, questions of discrimination and harassment arise when dress or appearance policies have different standards for men and women. For example, an appearance policy may require men to keep their hair short while allowing women to keep their hair long. Both Washington and the Ninth Circuit have found that these differing standards do not constitute discrimination.1

On the other hand, if an employer imposes differing standards that result in an unequal burden on men and women, such standards may violate discrimination laws. For example, courts have rejected policies requiring women to be in better physical condition than men and policies requiring women to wear specific uniforms, but allowing men to dress professionally.

Policies that pose equal burdens on men and women are generally permissible. If the policy requires one sex to take some action (e.g., cutting their hair), the policy should then impose some other burden on the opposite sex (e.g., keeping their hair back or keeping it professionally styled). While the burdens may relate to different requirements (e.g., cutting hair versus wearing make-up), overall the policy must be balanced.

Discrimination questions also arise where a neutral policy is inconsistently enforced. It is critical that employers uniformly enforce policies if the policies are to survive challenges.

Accommodation Issues

Even with a neutral policy that does not violate discrimination laws, an employer may be required to make ex-ceptions to accommodate an employee’s disability or religion.

In order to obtain an accommodation, an employee must have a bona fide religious belief, the practice of which conflicts with an employment duty.2 If a bona fide religious belief exists and the employee informs the employer of the belief, the parties then consider possible accommodations. Both parties have a responsibility to engage in this interactive process. If the only acceptable accommodation would pose an undue hardship on the employer, the employer is not required to accommodate the employee.3

The First Circuit recently looked at the burden on employers in Cloutier v. Costco Wholesale Corp.4 Costco’s dress code prohibits its employees from wearing facial jewelry while working. The plaintiff, a member of the Church of

Body Modification, asserted that she needed to display her facial piercings as part of her religion. Costco argued, and the court agreed, that allowing facial piercings would interfere with Costco’s ability to “maintain a professional appearance” and an exception to the appearance policy would create an undue hardship on Costco.5 The court recognized that companies need not allow exceptions to otherwise neutral policies intended to promote public images. In these cases, exceptions amount to an undue hardship.

Accommodations arise in both religious and medical contexts. With requests for medical accommodations, the parties should again engage in an interactive process. 6 One instance in which employers may receive medical requests for accommodations is when they have employees with pseudofolliculitis barbae. Those who have this condition generally need to wear a beard. Employers may need to allow an exception to a policy preventing beards to accommodate this medical condition. However, there may be valid reasons to deny such an accommodation such as safety standards (e.g., the wearing of gas masks) or image based appearance policies.

An appearance policy requiring a company’s employees who interact with the public to be clean-shaven is permissible.7 However, employers should apply exceptions to the policy uniformly. For instance, if an employer allows an individual with pseudofolliculitis barbae to work with customers, then an employer should also grant a similar request to

wear a beard for a religious-based request for accommodation.

Wage and Hour

A dress code can also have wage and hour implications. As a general matter, Washington employers are not required to pay for work apparel. However, they are usually required to pay for uniforms. Washington law defines a uniform as 1) apparel of a “distinctive style and quality that, when worn outside of the workplace, clearly identifies the person as an employee of a specific employer;” 2) apparel “specially marked with an employer’s logo;” 3) apparel representing “historical time periods or an ethnic tradition;” or 4) apparel which could be considered formal wear.8 When an employee is required to wear a uniform, the employer must provide either the uniform or make an allowance to reimburse the employee for the cost of the uniform.

An employer will also have to provide apparel or reimburse the cost where it requires employees to wear certain colors as part of its uniform, unless the required colors are “common colors.” 9 Under Washington law, common colors are white, tan or blue on the top and tan, black, blue or gray for the bottom (or any light or dark variation of these colors).10 If the uniform policy requires the employee to wear other colors (e.g., an orange top), the employer must compensate the employee for the employee’s apparel or provide the apparel.

Compensation related to dress codes might also be a consideration for periods of donning (putting on) and doffing (removing of) required apparel. The Supreme Court has held that employers must pay for activities before and after a shift if they are an integral and indispensable part of the principal activity.11 The Ninth Circuit has found that, under certain circumstances, employers must pay for donning, doffing and cleaning job-related protective gear.12 However, employers are not required to compensate for the de minimis time it takes to don non-unique protective gear, such as hard hats and safety goggles.13

Other Considerations

Employers should also keep in mind other considerations, such as safety concerns, OSHA requirements, local health codes and National Labor Relations Board (NLRB) regulations. A host of local, state and federal laws may mandate apparel or appearance standards for certain industries and jobs.

Regardless of whether an employ-er’s workforce is unionized, NLRB rules affect policies that would restrict or ban apparel or accessories with union insignia. Generally, an employer may not restrict the display of apparel or accessories with union insignia absent special circumstances. The NLRB permits re-strictions if there are safety concerns, in order to maintain plant discipline, to protect product purity or for public image.14

While the NLRB requires narrowly tailored restrictions, when it comes to public image, the Ninth Circuit has taken a broader stance. Upholding an employer’s ban against special adornment for employees coming into contact with the public, the Ninth Circuit recognized that “one of the most essential elements” of a company’s image is “the appearance of its uniformed employees who furnish” services to its customers.15

Wrapping Up

Employers have wide latitude in setting the image and atmosphere of their business by implementing and enforcing dress and appearance policies. If employers enact neutral policies that pose equal burdens on both sexes and enforce those policies in an even-handed manner,

while being sympathetic to those who need accommodations, those policies can help foster the desired atmosphere while not running afoul of employees’ rights. n

1 Albertson’s, Inc. v. Washington Human Rights Commission, 14 Wn. App. 697 (1976); Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974).

2 Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998).

3 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

4 Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004).

5 Id. at 130.

6 Dean v. Municipality of Metropolitan Seattle-Metro, 104 Wn.2d 627, 637-638 (1985).

7 Matter of E. Greyhound Lines Div. of Greyhound Lines, Inc. v. New York Div. of Human Rights, 27 N.Y.2d 279, 265 N.E.2d 745 (1970).

8 RCW 49.12.450.

9 Id.

10 Id.

11 Steiner v. Mitchell, 350 U.S. 247 (1956).

12 Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003).

13 Id. at 901, n 6.

14 National Labor Relations Act: Law & Practice, ¤ 5.07(1) (Matthew Bender 2005).