As more employees return to the office, this is a good time to review dress code policies to be sure that they reflect the most recent developments in federal and California law. One significant change is California’s Crown Act, effective since January 1, 2020. The Crown Act expanded the definition of race under California’s Fair Employment and Housing Act (FEHA) such that hairstyle traits associated with race—braids, afros, and twists, among others—are now protected against discrimination. This article reviews current law and makes recommendations for employers so that their dress code policies do not adversely affect a protected class.
At the federal level, dress code policies are governed by Title VII of the Civil Rights Act. Title VII requires dress code policies to be (1) adopted for nondiscriminatory reasons, (2) neutral, and (3) consistently enforced and applied to all people of all racial and ethnic backgrounds. Title VII recognizes that some businesses may have specific appearance needs and may need to design dress code policies that could create a disparate impact; however, employers must be able to show that they created such policies to satisfy a business necessity and are job-related.
In California, dress code policies must also comply with the Fair Employment and Housing Act (FEHA). FEHA has long prohibited employers from implementing dress code policies that disparately impact one race.
California’s Crown Act expanded the legal definition of race under FEHA to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The term “protective hairstyles” includes hairstyles such as “braids, locks, and twists.”
As a consequence, if a dress code policy prohibits some types of hairstyles and that prohibition has a disparate impact on one particular race – i.e. one group is impacted more than others – the employer must be prepared to demonstrate that such policies are a business necessity and consistent with the job.
Sex-based discrimination resulting from dress and grooming policies that burden one gender over another is also prohibited. Under FEHA, for example, employers are prohibited from refusing to permit an employee to wear pants based on the employee’s gender, subject only to narrow exceptions. It follows that employers should create gender-neutral dress code policies (like “professional attire”) whenever possible, and should avoid drafting policies that have disparate impacts on women or men.
In addition to prohibiting sex-based discrimination, the FEHA also requires employers to permit their employees to dress in accordance with their gender identity. This means that FEHA does not allow employers to adopt a dress code policy that forces an employee to dress, including make-up and nail polish, in a way “inconsistent with an individual’s gender identity or gender expression.” Employers who require a dress code policy that interferes with an employee’s ability to dress consistently with their gender identity must demonstrate business necessity for doing so.
Weights and measures
Similarly, height and weight standards must be justified by business necessity and related to the job. This is because FEHA regulations note that height and weight requirements can create a disparate impact on employees based on their race or ethnicity. Employers who require certain height and weights for their employees will need to be prepared to demonstrate that there are no alternative, less discriminatory means.
FEHA regulations also require employers to be cognizant of religious dress and grooming practices – like head or face coverings and jewelry, for example – and other items used for observing religion. The FEHA protects these forms of dress, including all forms of head, facial, and body hair that is particular to a religious creed. A dress code policy that interferes with an employee’s religious expression is not permitted under FEHA, though the employer is given the opportunity to show that accommodating the religious dress would cause serious problems, like safety concerns or undue hardship.
Casts and assistive devices
As for disabilities, employers must design dress codes that accommodate employees with disabilities. This means that unless they cause a safety concern, canes, casts, or supportive braces should be permitted in the workplace. As with religious dress, accommodations for disabilities that cause undue hardship to the employer are not required.
Piercings and tattoos.
Finally, piercings and tattoos are not explicitly protected under FEHA or Title VII; however, they may be protected if they related to any of the above protected classes. Employers may design dress code policies that ban visible piercings and tattoos, but should remember to apply those policies uniformly such that they affect all people of all races, ages, sex, religion, and other protected classifications.
Employers must be aware of current laws on dress code policies and should work to ensure that they do not create disparate impacts based on sex, race, gender identity, religion, and other protected classes. Accommodations should be built into the policies for disabilities and sincerely held religious beliefs. Changes to dress code policies should be designed by or reviewed by competent employment counsel.