Illegal Workplace Policies: Conduct and Appearance

Workplaces typically have many rules about employee conduct and appearance, including dress or grooming codes. Are these policies legal? Yes—but not always.

LEGAL VS. ILLEGAL POLICIES

Employers have the right to control what goes on their workplace and whom they hire. Employment is generally employment at will, which means that an employer is free to decide whom to hire, as well as when and why to fire them. Implicit from that is the right to control what goes on in the workplace: if an employee could be fired at will, they could be told how to act or dress to avoid being fired.

However, the employer’s rights, while broad, are not absolute. Federal law prohibits a number of forms of discrimination, such as—

• Against a racial group
• Against a religious group
• Against a gender or sex

Workplace conduct and dress policies that harass or discriminate against members of different racial or religious groups, or against a gender, are illegal. So, for example, an employer usually could not have a “no head covering” rule, because that would discriminate against observant Jews, Sikhs, and many Muslims.

However, rules that may discriminate against a group may still be legal if they serve an important business purpose and are applied across the board to everyone. For example, a surgical nurse may be required to wear scrubs in the operating room, no matter what her religion says.

Also, note that only certain types of groups are protected, and ways of acting or expressing oneself that do not come from membership in one of those groups are not. For example, if your religion requires you to have a beard, you might have to be allowed to have one, even if the company would prefer its personnel to be clean shaven—but having a beard just to express yourself is not a protectable right.

STATE LAWS GOVERNING THESE MATTERS

In the U.S., federal law often sets a floor, not a ceiling. That means that states can choose to be more protective than the federal government is, and in particular, can choose to protect additional categories or groups of people. It may be the case that under the law of your state, some element of dress or conduct that would not be protected under federal law is in fact protected. That’s why it’s important to always review state law.

HOW TO FILE A COMPLAINT

Both the federal and the state governments have agencies that protect people from workplace discrimination. For the federal government, it’s the EEOC, or Equal Employment Opportunity Commission. States have many different names for their agencies, but they are usually fairly easy to find: “labor,” “equal rights,” or “civil rights” are common parts of their names. An employee who feels he or she is being discriminated against or harassed because of membership in a protected group can file a complaint with the appropriate government agency. This includes harassment or discrimination based on dress or conduct associated with a protected group.

Another option would be to bring a lawsuit.

WHEN TO GET AN ATTORNEY INVOLVED

Ideally, you should consult with an employment lawyer as soon as you suspect that a dress or conduct code is discriminating against you. The attorney can evaluate whether you have a case, and, if so, what it might be worth; recommend going to a government agency or filing your own lawsuit; and advise you on how to act in the meantime at work, while the complaint or suit is going forward.