The importance of management making reasonable accommodations in the workplace cannot be overemphasized.
Written by Kristin LaRosa, Esq., Senior Counsel, ADP
In many parts of the U.S., certain work-related concerns that have long existed in silence are becoming more apparent to the public at large. Press coverage is increasing, and more people are sharing their stories via social media.
In the current environment where an organization's diversity and inclusion efforts are front and center, HR leaders need to fully understand the positive and negative effects of their organizations' personal appearance policies on employees. Employers who clearly communicate what may or may not be acceptable and why, and also provide a way for employees to seek reasonable accommodations — such as an exception to rules regarding personal appearance — can help ensure that employees comply with and embrace an organization's personal appearance policy.
Examples of Unfair Treatment based on Personal Appearance
In 2015, the U.S. Supreme Court reaffirmed the above principles in EEOC v Abercrombie & Fitch Stores. In the case, the Court sided with Samantha Elauf, a young Muslim woman who claimed she wasn't offered a position at an Abercrombie store because she was wearing a hijab, even though she met the job's basic requirements. The Court ruled that Elauf should have her day in court to prove a Title VII violation.
The Associated Press recently reported that a diner in Farmington, New Mexico had to pay a Muslim woman who had been forced to resign because she insisted on wearing her headscarf to work when she was told not to. The diner agreed to revise its religious discrimination policy and to notify the Equal Opportunity Commission (EEOC) of any requests for religious accommodations for the next two years.
Given the complexity that can arise in these situations, especially where requested accommodations may be due to religious beliefs, the EEOC has published guidance to help employers understand what steps they must undertake to adhere to their legal responsibilities.
The Purpose of Personal Appearance Policies
Nearly all employers have business cases for their written policies regarding dress, grooming and hygiene. These reasons include the need to project a professional image to the public — particularly to clients and customers — to ensure casual Fridays remain grounded and to maintain a pleasant and safe work environment for all.
HR leaders often structure or modify these policies to align with their organization's strategy or to support company branding. For example, delivery firms may require uniforms, and law firms may require suits or other business attire. Grooming and hygiene are necessary to keep the workplace neat, clean and operable.
Organizations generally do not encounter problems with such policies unless they run afoul of federal, state or local anti-discrimination law. For example, the Americans with Disabilities Act (ADA) protects individuals with disabilities. A personal appearance policy that disparately impacts members of a protected class or doesn't allow for accommodations because of the protected characteristic, can give rise to legal claims.
Because different people have different concerns and needs, it is important to consider reasonable accommodations on a case-by-case basis while being consistent in your approach.
Reasonable Accommodations — Policy Relaxation
When crafting personal appearance (or other) policies, employers should consider the business need for the policy, but allow for accommodations that would not pose an undue hardship on the business. Organizations may, at times, maintain a policy that seemingly discriminates based on a protected class (i.e., age or gender) if that policy is based on a "bona fide occupational qualification" that is reasonably necessary to the normal operation of that business.
When employees challenge a policy based on a protected characteristic, employers must engage in an interactive dialogue and allow for reasonable accommodations — which may include making exceptions to the dress code. For example, if a dress policy mandates professional business attire, someone who has foot swelling due to heart problems or diabetes may be uncomfortable in dress shoes. Allowing that person to wear nursing-style shoes could be considered a reasonable accommodation.
Some state agencies may also provide guidance to employers regarding personal appearance and dress code policies. For example, according to the Texas Workforce Commission, an organization can institute a "no facial hair" policy for legitimate business purposes, such as to maintain a business image or for safety reasons. But an employer may still be required to make reasonable accommodations under certain circumstances, such as if an employee has a skin condition, or their religion mandates wearing a beard.
The range of accommodations can vary, depending on the employer's business interest, any purported hardship, and the employee's needs. Employers who receive requests for accommodations much engage in an interactive dialogue with the employee, and should consider consulting experienced counsel if they contemplate denying a request.
Reasonable Accommodations — Employee Movement
Many workplace personal appearance policy issues arise when employees are in customer-facing roles. In situations where an employee's appearance interferes with an employer's policy that communicates the need to project a professional business image, the employer could consider transferring the employee to a different role that is not customer-facing. Employers must exercise extreme caution here and take steps to obtain the employee's agreement to transfer, as transfer into a less management-visible, lower paying or lower status position could be construed as an adverse employment act.
The importance of engaging in the interactive process and allowing for reasonable accommodations in the workplace cannot be overemphasized. Whether a manager is highly biased, adheres to rigid ideas about what constitutes acceptable dress or just misguided with respect to your appearance policies, mandating that employees comply with policies in ways that do not allow for exceptions could be problematic.
It is therefore critical that HR leaders teach and encourage tolerance along with compliance. By fully understanding the reasoning behind appearance policies, being aware of potential pitfalls and remaining open to possibilities for accommodation, HR leaders can work together with their organization's managers and employees to explore options that work for all.
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