Forget the Ghost … Beware of the Sexy Nurse

So, let’s say that you, like me, love Halloween. I mean, how can you not love a holiday where tens of thousands of people are dressing up as an oversized canary on October 31 just because of a throw-away comment about federal spending during a presidential debate?

Anyway, so, we love Halloween. We love it so much we’re going to go all out and show up to work at one of the 40 percent of U.S. companies that celebrate the holiday dressed as our favorite character from a cult-classic, low-budget Cohen brothers movie. When we arrive, looking forward to the potluck lunch because Kristin in Accounting promised to bring her patented eight-layer cookies, we’re stunned to discover that, in addition to the typical array of vampires and ghosts and hockey-mask-wearing maniacs, there is a disconcerting number of “alluring” nurses and geisha costumes in addition to the stereotypical gangster or terrorist outfits—a virtual smorgasbord of workplace inappropriateness. The stressed Human Resources (HR) Director is so busy running around trying to avoid a lawsuit that he or she can’t even enjoy the bubbling fruit punch. Well, at least Kristin’s cookies are good…

In my experience, employees crossing the boundaries of “work-safe” behavior with their choice of costume is an increasing trend around Halloween. I’m sure some of this is prompted by the slow but steady transition away from the traditional monster costumes to those that are more risqué. A recent online poll by the Glassdoor blog determined that more than half of employees (51%) expect HR to step in if someone’s costume crossed a line, with 14 % of those employees even expecting HR to send the offender home. Of course, more than twice that number polled (29%) said that HR “should be focused on more important issues beyond how to handle an inappropriate Halloween costume”…but that is not the group that keeps HR up at night (or, maybe it is…hmmmm—subject for another post).

Unfortunately, while October 31 may bring significant attention to the question of appropriate workplace attire, dealing with questionable outfits in the office is something that goes well beyond just Halloween. Many companies utilize a dress code that tries to maintain a sense of professionalism that is appropriate to the particular industry. No one expects a dock worker to wear the same thing as a receptionist at an accounting firm, but even the dock worker must dress appropriately both from a safety and from a company-branding standpoint. At the same time, state and federal laws prohibit enforcement of discriminatory or harassing policies, including dress codes. One of the primary areas where dress codes come under attack is for violating the religious requirements of employees.

For example, Title VII protects workers from religious discrimination and harassment, and requires companies to accommodate the religious beliefs and practices of its employees unless doing so would create an “undue hardship.” For more than 35 years, the meaning of “undue hardship” under Title VII has been (and continues to be) “more than a de minimis burden” (in plain English: “if it would cause the company even a slight problem”). This standard was applied by courts over the years when dress codes were challenged on religious grounds.

While case law seems to heavily favor companies that seek to enforce a reasonable dress code, there is currently a strong push towards greater recognition of employee religious rights in the workplace, particularly when it comes to physical appearance and grooming. The Equal Employment Opportunity Commission (EEOC) devotes a considerable amount of space on its website addressing grooming policies and the impact they play on the religious rights of employees, and California recently amended its workplace discrimination laws to include “religious dress and grooming practices” as a “religious creed,” and mandating a heightened level of accommodation by employers to different types of religious dress. This movement likely means another round of lawsuits challenging traditionally sound grooming policies on the basis that they violate individual religious practices or beliefs.

So, what can you do to avoid running afoul of the law while still maintaining a reasonable amount of control over the appearance of your workforce? When drafting your dress code policy, you should consider the following three-step process:

1. Are there safety concerns that must be addressed? Courts, almost without exception, give strong credence to maintaining workplace safety, even at the expense of an individual’s religious preferences. So, a prohibition against loose clothing or dresses around heavy machinery or a requirement to wear steel-toed shoes in a factory or hairnets in restaurant settings all will be deemed appropriate for employees who work in certain positions.
2. Are there business concerns that must be addressed? This is more industry specific and is more likely to rest upon general societal norms. Do you work in a law office or accounting firm? Chances are you can mandate business attire for men and women alike. Do you work for a clothing retailer? Chances are you can require salespeople to wear clothes made by your company. But what about the folks in the stockroom who never interact with the general public? Requiring them to wear clothes sold by your company may be a bit of a harder sell, particularly if doing so pushes up against religious or disability-related limitations. Proceed with caution here.
3. Do your policies discriminate or harass a protected class based on a stereotype? Even a neutrally-applied policy—say, one that requires all women in a Japanese restaurant to dress up as geishas, regardless of race—can lead to discrimination and harassment claims. Racial, ethnic, and even environmental stereotyping is a hot button topic these days and is often very hard to defend.

 

If you walk through these three steps as you’re drafting your policy, you should be well on your way to defending your dress code and protecting your company from any subsequent claims of discrimination.