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What’s With This Fetish About Pants?

Photo: @nisoloshoes/Instagram

Now that winter has turned into summer — overnight — the issue of clothes at work is front and center. (Isn’t it?). What to wear? No tie? Sandals? Tube top?

So much to wrestle with.

But what if you were forced to wear certain clothes? Or forced not to wear certain clothes? The same with hair — short hair, corn rows, close cropped, or a thousand different styles. Wasn’t too long ago that a white collar workplace uniform and grooming standard was enforced.

In many workplaces it still is.

The question is asked a lot: Is there any regulation of what an Employer can require by way of dress and grooming? The answer: Not really. The dress code leeway that you may take for granted in your workplace is generally at the whim of the employer. Off with long hair, guys! Cover up that bodice! Put that tie back on!

Pretty much the employer’s call.

But not always.

A newly filed EEOC lawsuit lets me know that it’s time to revisit the issue of dress — and workplace Religious accommodations.  (We’ll leave the issue of sex discrimination for another post).

Can You Wear Dreadlocks?

Not long ago I wrote a post here about workplace grooming — hair, actually — and asked whether you can wear your hair any way you like at work.  “The analysis starts (as always) with the cryptic answer ‘No. But maybe.’”

For all intents and purposes, in an at-will state, if you let your freak flag fly at work you can be fired. Or not hired. Nothing says that an employer cannot have an “appearance” policy for grooming. Except… when the civil rights laws are implicated. You know: Title VII, the Americans With Disabilities Act (“ADA”), etc.

I noted that “Title VII and the ADA do not prohibit employment dress or grooming rules per se, as long as the rules do not have a ‘disparate impact’ on, for example, employees who have Religious Beliefs (or also a disability) that require a certain dress or hairstyle.”

That might include, for example, a Rastafarian employee who insists on dreadlocks.

With that as a foundation, let’s turn to dress codes and religious beliefs.

You Must Wear Pants!

The new EEOC case reminded me of that post about hair. The EEOC alleged that six female Muslim passenger service agents at an airline support services company were permitted to wear long skirts in accordance with their religious beliefs, but suddenly in late 2016 they were told that this would no longer be permitted and that they would be fired if they did not wear company-provided pants or knee-length skirts.

They objected, requested an accommodation, and were fired.

Pretty thoughtless change in policy. And likely going to lead to an unwanted result for the employer.

You Must Look Preppy!

This case is hardly the first time that an employer was sued for allegedly denying an accommodation in dress to those with sincerely held religious beliefs.

Remember the Disney and Abercrombie & Fitch “look policies” – which were adopted to make sure that every employee embodied a “preppy” brand image? A Muslim woman whose religion required her to wear a hijab, or head scarf, challenged the policy, and it was ultimately struck down.

But getting back to pants. (Why are — is? — pants such an issue in the workplace?).

In late 2016, a company that designs and manufactures automotive brake components and its staffing agency were sued by the EEOC for religious discrimination in hiring.  The would-be employee, who had been made an offer of employment, was “an observant member of the Apostolic Faith Church of God and True Holiness, a Pentecostal Christian denomination. [She] holds the religious belief that she cannot wear pants because she is a woman, and that she is commanded to wear skirts or dresses.”

The would-be employer, however, had a dress code policy which mandated that employees wear pants. Sound familiar?

Something had to give:  pants v. skirts. And religion.  The employer directed the staffing agency not to hire her, and her offer of employment was withdrawn.  Corporate dress policy would not bend to religious beliefs as to dress.

An EEOC attorney said, correctly, that “Federal law requires employers to fairly balance an employee’s right to practice his or her religion and the operation of the business. For an accommodation to be meaningful under Title VII, it both must respect the employee’s religious beliefs and permit her to do her job effectively.”

Another case not likely to end in the employer’s favor.

Would it really have been an undue burden to permit this one employee to wear a dress or skirt?  Was a policy of uniformity so important to this employer?

As I always advise, accommodations are usually not that costly.  Indeed, another EEOC official stated previously that “Many times when there is a conflict between an employee’s religious beliefs and a work rule, there are easy modifications to company policy permitting an employee to continue to work without violating his religious beliefs.”

There’s A “Standard Uniform”!

A year ago I did a post here about a female employee who breached the “standard uniform” of a Tim Horton’s in Michigan by wearing a skirt, and was fired.  As a follower of the Pentecostal Apostolic faith she was forbidden from wearing pants.

The EEOC promptly sued, with one attorney declaring that “It would have been simple to allow [her] to wear a skirt, and would not have negatively impacted the business in any way. Employers have an obligation to provide these types of reasonable religious accommodations.”

This mantra gets repeated in every such case.

Takeaway 

In a large and diverse country there are religions and religious groups that have beliefs or practices that some do not understand – and sometimes conflict with employer policies.

When an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must, under Title VII, accommodate the religious practice unless that would be an undue hardship on the operation of the employer’s business.

And it usually isn’t.


Richard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at [email protected] and follow him on Twitter at @richard09535496.

The post What’s With This Fetish About Pants? appeared first on NewsWorld.



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