Generally, your employer may maintain a dress code that applies to all employees within a certain job category, even if it means that, coincidentally, the dress code happens to conflict with some workers’ ethnic or religious beliefs. However, your employer’s policy can’t single out groups of people based upon factors such as national origin or religion. For example, the company can’t ban employees from wearing traditional African head wraps while allowing other employees to don western-styled hats (cowboy hats, fedoras, baseball caps, etc.) — such a prohibition presumptively targets black employees or employees of African origin for discrimination. If your employer permits casual wear in the workplace, but bans traditional Indian attire such as a sari, your employer puts itself at risk of liability for national origin discrimination under Title VII of the Civil Rights Act.
Abercrombie and Fitch, a popular clothing store, was recently in hot water over its dress code — which the company called its “Look Policy” — that allowed one of the company store’s hiring managers to pass over a Muslim female applicant who wore a hijab, a traditional head covering worn by female adherents of Islam. Although a court of appeals eventually ruled for Abercrombie in that case, the court recognized that Abercrombie would have had a duty to provide a religious accommodation to the applicant had she expressed that the company’s dress code conflicted with her religious practice AND if such an accommodation would not have been overly burdensome to the employer. The record showed that the applicant never explicitly explained that she would need to wear the hijab while at work as a religious accommodation. The court noted,
“During the course of the interview, Ms. Elauf never informed Ms. Cooke
that she was Muslim, never brought up the subject of her headscarf, and never
indicated that she wore the headscarf for religious reasons and that she felt
obliged to do so, and thus would need an accommodation to address the conflict
between her religious practice and Abercrombie’s clothing policy.”
Her silence as to the religious importance of wearing her hijab at work doomed her claim. The court was not willing to place the burden on the employer to presume that she needed to be able to wear her hijab. And because employers shouldn’t ask or make assumptions about an applicant’s religious affiliation, the court could not fault the employer for not having inquired into Ms. Elauf’s religious beliefs.
Similarly, your employer — if it knows that you are disabled and that you need to wear a special kind of shoe, for example — must, by law, accommodate your request to do so, as long as it does not pose an undue burden on the employer’s business. Under such circumstances, your employer must engage you in what is called the “interactive process” to collaboratively discover a reasonable accommodation — such as an exception to its dress code — that allows you to perform the essential functions of your job.
The lesson to take away from all of this is that if your religion or disability requires you to wear certain kinds of clothing, you should let your employer know that you need an exception to the dress code as an accommodation. Be as specific as you can. Take the guess work out of the equation for your employer because you won’t be able to successfully claim that your employer failed to meet its duty if you never told your employer about your need for an exception to its dress code.
If you believe that your employer’s dress code singles you out because of your race, national origin, gender, religion, or disability, you should consult with a skilled employment lawyer to determine whether there is a practical or legal solution to remedy the problem.