How far can employers go in controlling dress and appearance? The Greater New York Chapter of the Association of Corporate Counsel and Ford & Harrison LLP recently presented an educational program titled Fashion Police and the Law at J.P.Morgan Chase & Co. in New York City.
Speakers were Judith Ann Moldover, of counsel, Ford & Harrison, and Melissa Gold, vice president and assistant general counsel, J.P. Morgan Chase.
One of the minor nightmares that general counsel face - and perhaps not so minor - concerns the situation where the board of directors holds an emergency meeting at company headquarters on a dress-down Friday. What do the directors - all captains of industry and professionals - experiencewhen they walk through the company's doors? People in halter tops and muscle shirts?Company employees who are demonstrably into body piercings?
This program addressed the issue of how a company goes about setting a policy on employee dress and general appearance that reflects the image the company is attempting to project to the public - a polished and professional image - without running the risk of being sued.
Ms. Moldover, an experienced practitioner in the employment law wars, discussed a number of cases representative of the pitfalls that the company might encounter in trying to do the right thing. Take the Sikh employee who is subject to a religious requirement to wear a turban. In many instances, the employer would be wise to carve out an exception for this case. Safety requirements, however, may well trump religious requirements, including a Sikh turban.
With respect to body piercings, Ms. Moldover noted a recent case where the dismissed employee, a member of the Church of Body Modification, had failed to remove or cover her facial piercings while at work, as requested by her employer. The First Circuit ruled that the employer had no duty to provide the religious accommodation requested by the employee and that exempting her from the dress code was an undue hardship since it would adversely affect the employer's public image.
Ms. Moldover also reviewed the ways in which lines can be drawn in this complicated arena. This included a review of policies that impact all employees, men and women separately - and the avoidance of discrimination charges where separate policies are implemented - and the role that compensation, gender and religion play in this discussion.
Ms. Gold concluded the meeting with a presentation of severalpractical - and often overlooked - pointers on the administration of a corporate dress and appearance policy:have a legitimate business reason for the policy; enforce the policy even-handedly, i.e assess whether it imposes different standards for one sex, one racial group or has an age impact; be certain the policy is not perpetuating some offensive or outdated stereotype; build flexibility into the policy; be prepared to make accommodations based on disability or religion, and evaluate whether local laws limit the ability to set dress or appearance standards.