Dress codes are enforceable
Published 12/17/04

An employer's dress and grooming policy is generally legally enforceable. Personal dress and grooming codes should be reviewed with the company's employment attorney to lessen the likelihood that they could be successfully challenged as discriminatory either on their face or as applied.

For example, a strict no beard rule could discrimination on the basis of race or religion. A rule prohibiting beards could result in the allegation of religious discrimination since certain groups such as Orthodox Jews and Muslims wear beards for religious reasons.

The fact that the dress and grooming policies may be different for men and women does not mean that the employer is discriminating based upon gender.

For example, in 1975, in the case of Planchet v. New Hampshire Hospital , a male security guard challenged the hair length requirement necessary for appointment as a special law enforcement officer in that he claimed he was discriminated against based upon his sex. The New Hampshire Supreme Court did not agree and pointed out that the purpose of the law prohibiting sexual discrimination is to prevent discrimination based upon "imputable characteristics." The law is not designed to eliminate all distinctions between the sexes in dress and actions that are within the control of the worker. Therefore the Court found that Planchet's loss of employment occurred when he refused to cut his hair and not because he was a man even though women were allowed to have longer hair.

Likewise, the Supreme Court of Iowa ruled similarly in a December 2003 case of Michael Pecenka v. Fareway Stores, Inc . Pecenka could not go to trial on his claim that his firing based upon his refusal to remove his earring constituted sexual employment discrimination. That Court, likewise, noted that customary modes of grooming, which have only have an insignificant impact on employment opportunities did not constitute sexual discrimination.

Dress codes should include some management discretion. For example, a dress code that requires female workers in an office setting to either wear pants or a dress needs to also state that all workers must dress professionally and appropriate for the office setting. Management will then be able to cite the more subjective "professional and appropriate" standard when alerting a female worker, privately and discretely, that her leather pants or other "inappropriate" attire may not be worn at the office again.

In summary, employers generally have the right to require their workers to comply with dress and grooming codes. Workers do not have a legal right to wear their hair, clothing, or jewelry in a way contrary to those dress and grooming codes just because the workers prefer to. The workers must have a legitimate basis for challenging their compliance with the dress or grooming code such as a medical necessity or a bona fide religious belief.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.