Dress Code Discrimination
Let's take a look at the legal implications of applying and enforcing an office dress code.
A dress code can be a very practical thing to have as part of company policy, but it can also raise a number of potential legal issues. Areas to be considered when compiling a dress code include issues of race, sex, religion and disability, amongst others. With more and more cases of dress code-related legal actions being taken by employees, this relatively simple part of company policymaking is becoming a bigger and bigger headache for HR managers.
It seems that cases of discrimination, especially on grounds of religious symbols and beliefs, are making headlines with increasing frequency. The most recent case is that of British Airways worker Nadia Eweida, who was told to conceal her cross necklace because it contravenes the company's uniform policy. Ms Eweida took unpaid leave in 2006 for refusing to conceal her crucifix under a company cravat. BA expressed that this contravenes their dress code, as all jewelry worn by BA staff must be done so under their uniforms. However, BA makes allowances for other religious dress - Sikh turbans and Muslim hijabs - in their dress code because they cannot be covered up by the wearer. Ms Eweida is looking to sue BA under the UK's Employment Equality (Religion or Belief) Regulations 2003, stating that her cross is a symbol of her deep Christian beliefs, and she should be allowed to display it in the same way as her Sikh and Muslim colleagues.
Gender can also be a catalyst for more discrimination claims, as was the case in Manchester, England in 2003. Civil servant Matthew Thompson successfully took his employer, Jobcentre Plus, to court after complaining about being forced to wear a collar and tie to work. Mr Thompson cited the fact that women in his office had been wearing tee-shirts, and in some cases, football shirts, to work during the hotter summer months without facing disciplinary action. Mr Thompson, who works in a non-customer facing role in the back office of the Stockport office, successfully argued that ‘draconian' dress codes set by his employer were out of date, and were discriminatory towards male employees. Jobcentre Plus workers could be fined up to 10% of their salary as well as be sacked, for refusing to conform to the dress code.
Mark Serwotka from the Public and Commercial Services (PCS) union, which backed the case, said that the dress code was clearly discriminatory and should never have been introduced in the first place. He added: "Even though the ruling paves the way for us to bring similar cases, we will look to sit down with management to hammer out a sensible solution.
"However, if this consensus approach fails we will not hesitate to pursue further cases on behalf of our members."
The PCS had a further 39 cases planned if a "sensible solution" was not now agreed with managers.
However, the Employment Appeal Tribunal in England has sent the case back for reconsideration because it said the original tribunal asked the wrong question. Instead of asking “Was Mr Thompson the victim of sexual discrimination because he was told what he had to wear while female colleagues were not?”, it should have asked “Can the employer only achieve an equivalent level of smartness between male and female colleagues by requiring men to wear a collar and tie?” This is a valid question, as most companies believe that a collar and tie is the acceptable business attire for customer-facing male employees. However, Mr Thompson was not required to deal with customers face to face, so this is why his case was taken up. This is an important area to consider for HR managers when drawing up their dress codes, and one that we shall look at in more detail later.
Mr Thompson eventually lost the case as it was ruled that employers can require male employees to wear a collar and tie if that is the only way of achieving equivalent levels of smartness for men and women. However, this is unlikely to be the case in every situation. As with most cases of this nature, it is not really the outcome that the media focuses on, more the sensationalism that the case causes amongst the working public. At times, certainly with the case of Ms Eweida in England, people jump on the political correctness bandwagon and a relatively small issue can be blown out of proportion. Certainly for employers in England this delicate balance is set to get even harder to achieve in 2007 when the Government introduces changes to existing discrimination policies that will protect further people's religious, political or even philosophical beliefs.
From a HR perspective, it is the disruption and time and money spent on defending the case that causes the most hassle. Employers have to put forward witnesses, prepare their defence and face the possibility of further cases brought against them by other disgruntled employees if the first is successful.
For smaller employers it is sometimes hard to back up their dress codes should an employee want to take the issue further. As fighting such cases requires the employer to be present in court, a lot of smaller business settle out of court, or do not enforce the dress code they have created as they simply do not have the time to defend it.
Mr Thompson's case highlights that men as well as women can suffer from sex discrimination over dress code in the office. From a female point of view, however, there could be a possibility for more cases of sexual discrimination over dress codes, as some employer's ideas of what is acceptable for women to wear in the office varies considerably.
A classic area for issues of women's rights in the office arise over the wearing of trousers in the workplace. Some employers will insist that women do not wear trousers, but this is increasingly rare as more and more women fight this rather outdated dress code policy.
In a 2001 survey by The Hong Kong Professional Teachers' Union ("HKPTU") and the Equal Opportunities Commission ("EOC") on the "Dress Code of Teachers and Students" found that 94% of people surveyed believed that there should not be a dress code policy that prohibits women from wearing trousers to work. However, the same survey showed that 29% of schools did have such a dress code. But overall, it was found that employees favored a change in school dress codes.
A third area that causes issues with adopting new policies is disability. Sometimes, people cannot follow the rules of a dress code due to a physical disability, and should therefore be allowed exemption from that particular area of the code. For example, a dress code may stipulate that male employees should be clean-shaven, especially in a customer facing role. However, some people, especially of African decent, suffer from a skin condition called pseudofolliculitis barbae, or PFB, where hair that has been shaven grows back and into in to the skin, causing irritation. Cases of this nature can be raised under the banner of disability, but in the American courts, the successful employees have won the case on the grounds of racial discrimination.
So, how do you go about creating a dress code that avoids these potentially costly court cases being raised against your company?
It is fair to say that if anyone in your company has a customer-facing job they should be expected, as part of their contract, to comply with the company dress code.
First and foremost, if a company implements a dress code then it must be clearly communicated to all employees. This is one of the largest issues around enforcing policies, namely that some employees simply don't know that they are making a dress code violation because they are not aware of what their company's dress code policy is. New employees should be made aware of the code as part of their contract, and existing employees should be reminded via interoffice communications like Intranet pages.
It is vital that once a company introduces a dress code, they enforce it. Violations of the code should not go unnoticed. It is sometimes difficult to get existing employees to adopt a new dress code, especially when they have been with the company for some time. In these cases you do need to take the employee aside and explain the reason for the code, and ask them to comply. If they do not, it is possible to terminate their contract with the standard one-month notice. However, a reasonable employer should take any concerned individuals to one side and discuss their problems or issues with a HR representative and see if a solution can be reached.
Common sense is the one universal ingredient that should be applied to every dress code. Look at your office, look at your workforce and look at the jobs they do. Are any of your dress code policies going to cause problems in the work place? Are there any employees who have certain requirements or disabilities that the dress code will impede? This may sound obvious, but it is surprising how often this area is overlooked.
Talk to your employees. Not only will this help you gauge the opinion your staff hold towards dress codes, it will also aid in the communication of the soon to be implemented new policy. Often employees enjoy, and appreciate, the opportunity to discuss what affects them in their working environment, so this will give them the chance to voice opinions about any issues they may have. If your office has any employees that act as ‘Office Ambassadors' - go-betweens who voice employee's opinions to management - it would be wise to draft up a plan and present it to them first. They can then comment and add to the plan, and get an idea of the general consensus of the office. The advantage to this approach is that any potential discrimination issues, be it on the grounds of religion, sex, disability or even age, can be caught and dealt with before the dress code is implemented company-wide.
Some key points to consider:
Source: HR Magazine
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