Discrimination in Dress Codes
JACHR1979
20 Posts
To my knowledge there isn't a federal law regulating dress codes in businesses, but does anyone know if it is considered discrimination in the State of Texas for a business to require women to wear skirts even if it isn't necessarily a BFOQ? Does it offer the business some protection if they are a non-profit 501-c3?
Their reason for the stipulation is a personal, religious preference.
Comments
Please clarify. Is this a situation in which you have a dress code stipulating skirts for women and there is a woman who, for religious reasons, wants to wear something different? Alternatively, is this a case in which you have a supervisor who has stipulated a dress code separately from the Company that requires skirts for women because of the supervisor's relgious beliefs?
Assuming it's the more common former than latter case, the question becomes not so much one of whether or not your dress code is legal as whether or not your failure to accomodate constitutes religious discrimination. In most cases, failing to allow a female employee to where something different, presumably slacks or something more "moderate" would be considered a failure to make reasonable religious accomodation. Examples where employers have prevailed typically have to do with things like scarves and flowing robes and loose fitting clothing around machinery such that the proposed dress accomodation would constitute a serious safety hazard.
Your status as a non-profit is largely irrelevent unless you are a religion-affiliated non-profit, in which case we will need much, much more information. On the face of it, your employee (assuming it's the former case) is entitled to dress according to the dictactes of her religious convictions with only a few exceptions to that general rule.
Since it is a non-profit religious orgnazation, but yet you call it a "church associated business", it is hard to tell whether it would fall under the Title VII exemption or not. There is no black and white general test for the exemption beyond actual clergychurchworkers. It is very dependent on details. I would strongly suggest that you seek legal counsel who is familiar with non-profit religious-related organizations.
Some things to consider:
(1) Would the "business" be adversely affected if the women were to wear something other than skirts? Would "customers" refuse to do business because of this issue?
(2) What type of dress code is there for the males? Are they required to wear something specific (ties, jackets, etc)?
(3) What is provoking the question in the first place?
ETA: if you have time to read through an article, here is one:
http://www.abanet.org/irr/hr/summer04/reconcile.html
"...The premise on which sections 702 and 703 (e)(2) were based—that protecting the autonomy of religious institutions is a necessary corollary of the Constitution’s protection of the free exercise of religion—has not been subject to serious debate. Indeed, the courts have read a constitutionally mandated “ministerial exception” into Title VII pursuant to which religious institutions may discriminate on any basis, not just with respect to religion, when it comes to employment decisions involving clergy. Rather, debate has focused on the extent to which exemptions for religious organizations should be carved out so as to protect the groups’ autonomy. Thus cases questioned the constitutionality of the 1972 expansion of the section 702 exemption. The Supreme Court upheld the exemption in 1987. Other cases, with varying results but generally protective of religious institutions, have examined the question of just how “religious” a religious institution has to be to qualify for a section 702 or section 703(e)(2) exemption, as well as whether given employment decisions were made on the basis of sex or pregnancy, as opposed to religion—and would therefore, at least with respect to nonministerial employees, not fall under the exemption... "
Beware of the customers refusing to do business question. That path usually leads to trouble. For example, no court in the US will let you discriminate on the basis of race simply because your customers are racist. That one is well established.
I agree with HRforME that we need to understand the context much more fully.
"Beware of the customers refusing to do business question. That path usually leads to trouble. For example, no court in the US will let you discriminate on the basis of race simply because your customers are racist. That one is well established."
I can see how it could lead down a dangerous path... and that's why I think the nature of the "business" must be further established. I think that definition of that and of their "customers" could sway the argument either way. And honestly, I could argue this either way *Ü*
The business is a child day care and church school. The daycare and school are owned by the church itself and also operate as a 501(c)3. The church itself believes, and teaches, that there needs to be a distinction in dress that is appropriate for the sexes (i.e. pants for men, skirts and dresses for women). Naturally they wish that belief to be reflected in their employees that work in the day care and school.
Currently there is no violation of the policy. However, currently, the majority of their employees are their congregants and so naturally they too hold to those beliefs. They are actively recruiting new hires from outside their local congregation and open the doors for anyone to apply. My concern was the policy requiring women to wear skirts even though there was no BFOQ. Pants would allow the female employees to do their job at the same level of safety and competency as skirts would, while also maintaining modesty and professionalism. The policy is a pure result of their religious dictates.
Employees are made aware of the policy and do sign a "confirmation of receipt of dress code" upon hire. I know there are no federal laws regulating company dress codes, I just wanted to run this by other professionals to see if anyone can blow holes in the policy and know of any possible pitfalls.
I am concerned about the company requiring skirts on women when the job does not demand it and it is a pure result of religious dictates. I'm not arguing the validity of the dictate, only whether or not it could be considered discriminatory to require their idea of gender specific dress. If a situation arises where one of the female employees challenges the policy because they want to wear pants, and they are disciplined for it, then can that be actionable?
I recall a case in which a religious organization opened a call center for answering questions about the texts and doctrine of the religion. They wanted only people of their religion working in the call center. They lost the case.
Would they have won if the issue had been requiring female employees to be dressed in skirts when answering questions about relgious texts and the doctrine of a particular faith? I think they probably would not have won that one either. MAYBE if they skirts were a part of a uniform that the organization supplied and maintained and both male and female employees were required to wear uniforms and that neither men nor women could claim that their uniforms were gender hostile. I haven't looked at this in a long time but what's the status on requiring women to wear makeup (while forbidding men from wearing it) or similar issues raised about ear rings and the like?
Here's one case in which a 3 judge panel upheld favoring the employer's requirement that women wear makeup and that men not wear makeup:
http://www.jacksonlewis.com/legalupdates/article.cfm?aid=731
Keep in mind, as our friends at Jackson Lewis say at the bottom of the article, "Because the "unequal burdens" test necessarily is fact dependent, employers are also likely to achieve mixed results in litigation."
They go on to suggest "As a result, employers should carefully review all dress and grooming policies and practices to protect against potential claims of not only sex discrimination, but also claims of discrimination based on other protected categories, such as race, religion and national origin." The skirt requirement could violate the religious requirements of other potential employees or rule out people of other national origins unless the employer can include everything from saris and kimonos to nuns' habits and burkhas as skirts.
Relating to my other reply, here's a good article that covers a lot of this ground in the legal world very nicely:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957804
Unfortunately, I was writing that response while OP was writing clarification so I must post separately since this ilne of discussion is moderated.
A few items of interest: the validity of the dictate by some sense of rules is irrelevent and normally not challengeable. Religious belief cannot be put on trial, only the consequences of action stemming from the belief. So, to be clear, the belief that women should wear skirts or dresses is not up for grabs here, only whether or not that belief can be applied "safely" as a policy of employment.
Although you are correct that there is no federal law governing dress codes specifically in the sense that a law is a statute, there is considerable case law concerning dress codes. The "unequal burden" test is one consideration. Another is a newer area of litigation concerning sex stereotyping. The unequal burden theory will have claims against you consider all the facts of the business. The sex stereotyping theory is newer, broader, and more likely subject to change. You can definitely end up in a legal action over your policy. It's not clear to me if you have a good chance of prevailing or even if prevailing at the cost of litigation is worth it to your organization. Keep in mind that Harrah's, in the above case, offered reinstatement and exemption from their makeup policy but plaintiff opted to push the point and continue the litigation. Harrah's won, but they had to go to the 9th circuit to do so. I suspect that cost a lot of money.
In your situation, I am concerned that your policy would dsicriminate against women of other faiths or nationalities as I mentioned in my other reply. I think it's time for you to visit an employment law attorney. I would say that the state in which your business operates (and, therefore, the circuit of jurisdiction) would be an important consideration in assessing the final risk of win or lose but you shouldn't overlook the cost of winning if it comes to that. Also keep in mind the many caveats that your case can look like one (or several) that suggest your organization would prevail and still end up losing when the actual facts of your case are considered before a court. This is not cut and dried.
Honestly, I could still argue both sides since you do agree it is not a BFOQ, so I can see your concern.
Found an interesting article here: http://teacherlaw.blogspot.com/2007/08/teacher-dress-codes.html about teachers (if you take the religious part out of the equation) that states "....It is legal for Texas school districts to have dress codes for their teachers, even very specific ones that dictate precise clothing options the way that many student dress codes do..."
It goes on to state "..... Short of issues like that (safety), or ones that directly or indirectly infringe on religious beliefs, courts will pretty much uphold any dress code an employer imposes, including those that include personal grooming guidelines for hair and tattos and such things."
I suppose you could get into an argument from an employee whose religion requires them to have their legs fully covered at all times....where a skirt wouldn't fall into that requirement.
But honestly I would still spend an hour consulting with an outside employment attorney...just to have the backup before you need it! Because I am finding very little out on the 'net for reference.
And here is an article on Dress Codes via BLR: http://hr.blr.com/news.aspx?id=77395 about the basic questions to ask to make sure your dress code is nondiscriminatory.
[...]Short of issues like that (safety), or ones that directly or indirectly infringe on religious beliefs, courts will pretty much uphold any dress code an employer imposes, including those that include personal grooming guidelines for hair and tattos and such things."
I suppose you could get into an argument from an employee whose religion requires them to have their legs fully covered at all times....where a skirt wouldn't fall into that requirement.[/quote]
This is basically my point in a nutshell: if a sari, a nun's habit, a burkha, or a knee-length dress over leggings of some kind is OK, then there may be no issue.
Also, of course, the unequal burden test can be harder in some circuits than others and that's where the lawyer comes in. I'm a little surprised that the 9th circuit found against plaintiff in that other case referenced above.
In our own dress code, we require supervisors and managers to cover all tatoos and to dress to a more formal standard than other employees are required to meet. We require that dresses and shorts be at least walking length. At the lowest end of requirement, we stipulate that we don't care how low your pants are or how high your shirt is, as long as we can't see any undergarments or skin in beetween them. It's not that I think you can't impose requirements on people for dress code. Quite the contrary.