On Monday June 24, 2013, the U.S. Supreme Court finally decided the definition of a “supervisor” for purposes of determining an employer’s strict liability for hostile work environment claims under Title VII of the Civil Rights Act of 1964. …
A Tennessee Circuit Court Judge recently made headlines with a memo to local attorneys discussing appropriate courtroom apparel, including a reminder to female attorneys to avoid “revealing” blouses and miniskirts. The Judge appears to be an equal-opportunity wardrobe conservative, since he previously held a male attorney in contempt of court for not wearing a blazer. Indeed, several female attorneys in the area supported holding women to the same standard as men, especially after seeing other female attorneys wearing clearly inappropriate courtroom apparel, including sun-dresses and even sweat pants.
The Judge’s memo highlights an issue faced by many companies today. As societal standards of dress and personal appearance shift, many employers are adjusting their workplace policies in response. This trend is especially pronounced in the summer months when the temperatures rise and apparel becomes more relaxed. Most business owners have their own perceptions of what may or may not be “appropriate” workplace dress or appearance. But how far can a company go to regulate these issues without raising legal concerns?
The good news for business owners is that the law allows a fair amount of flexibility on this topic, although there are important risks to avoid. Of course, the law does not require a company to impose any dress code at all, but it is best to establish some clear standards in advance to prevent problems. As with any workplace policy, companies are wise to draft these standards carefully and enforce them consistently.
When drafting a dress code or appearance policy, an employer should consider the purpose for that policy and the goals it wants to achieve. The specifics of these policies vary widely from company to company, and even among different job roles within the same company. Ideally, the standards should relate to legitimate business interests, like safety, efficiency, and the promotion of the company’s professional image.These policies can be tailored to the needs of each individual business. Many companies use simple and broadly-drafted policies requiring nothing more than a“professional and well-groomed appearance.” That type of policy relies heavily on employee discretion, and provides little guidance about what the company may consider “appropriate” and acceptable.This less-detailed approach can be problematic if a company’s workforce is particularly prone to testing boundaries.
Other companies opt for much more detailed rules governing the condition of clothes and uniforms, grooming, facial hair, tattoos, piercings, jewelry, and even perfume or cologne. Such detailed standards can be useful – and even necessary – in certain work environments, but can become oppressive and distracting in others.
Most companies find a balance between these two extremes, consistent with the needs of the business, its workforce, and work environments. Inviting some employee input in advance can also help a company weigh employee concerns and anticipate potential conflicts.
Whatever the employer’s expectations may be, it is best to define them clearly and objectively. This makes it easier for employees to follow the rules and for management to enforce them. Specific examples of acceptable and unacceptable apparel can help employees better understand the company’s expectations.
Certain extremes that are inappropriate for any workplace should always be clearly prohibited. These include particularly revealing or suggestive attire, and clothes or visible tattoos that include offensive, graphic, violent, or sexually suggestive images or messages.
Well-drafted policies also outline the consequences that may be triggered by their violation. For example, will the employee be sent home to change – off-the-clock and without pay – or will they be subject to further disciplinary action up to and including termination? Since this presents a potential disciplinary issue, the policy should be drafted to reserve as much flexibility and discretion to the employer as possible.
As with any workplace policy, consistent enforcement is critical to avoiding problems and potential legal exposure. In general, the law recognizes a company’s authority to impose dress and appearance requirements, even where they may conflict with some religious belief or ethnic practice. That authority is not unlimited however. Certain circumstances may require further consideration, such as disabilities, religious beliefs, or nationality or ethnicity.
Under these limited circumstances, an employer may be required to make a reasonable accommodation to its standard policy if it does not impose an undue burden on the business. For example, traditional African or East Asian apparel, turbans, or religious headwear may seem unusual or out of place in certain workplaces. That attire may nevertheless betied to deeply-held religious beliefs or important ethnic practices. Such apparel may lawfully be limited for legitimate business reasons, for example, when it interferes with operation of machinery or safety gear. On the other hand, if acompany ordinarily allows outlandish hairstyles, baseball caps, or other casual dress, banning these religious and ethnic garments may be more problematic.
These determinations should be made on an individual basis, considering legitimate business concerns for safety, efficiency, company image, and the like. Context matters, and a flexible and interactive dialogue with the employee canfrequently lead to an acceptable compromise.
Employers are wise to periodically have their policies reviewed to ensure they are compliant with changes in the law and consistent with the company’s operational needs. This is especially important given the current regulatory environment and the aggressive enforcement efforts of many government agencies like the U.S. Equal Employment Opportunity Commission and National Labor Relations Board. Over the last few years, these agencies have become increasingly enforcement-minded, and they routinely target employment policies independent of the particular workplace dispute a tissue. Proactive steps by a company can keep a fashion faux pas from escalating into a federal case.
About the Author
Chad Willits’ practice is concentrated on employment law, admiralty and maritime law, personal injury, and general civil litigationin Ohio and Indiana. These services include drafting and implementing workplace policies and practices, management training, andoverseeing internal investigations and audits. He has extensive experience and an active pre-trial, trial, and appellate practice inthese areas.
CWillits@Rendigs.com | (513) 381-9297
Unlawful discrimination ultimately is about being treated less favorably because of race, religion, national origin, age, sex or other illegal factors. One way to prove unlawful discrimination is to show the person has been treated less favorably than a “similarly situated” co-worker. International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977), is the seminal case outlining claims of “disparate treatment.” As the Supreme Court noted, this is the most easily understood type of discrimination.
How does one prove “disparate treatment”? Typically, one looks at whether or not the Plaintiff in the action is treated differently than someone “similarly situated.” Who is “similarly situated”? Does one look at all of the employees of the company, all the employees in a particular division, or only those employees supervised by the same supervisor?
The Sixth Circuit, in Louzon v. Ford Motor Company, No. 11-2356 (June 4, 2013), reiterates the analysis to be performedin a discrimination lawsuit as to who is a “similarly-situated” comparator for purposes of determining whether a Plaintiffis “similarly situated” to those claimed to be morefavorably treated by the employer.
In Louzon, the Plaintiff was a product engineer at Ford. Plaintiff took an approved leave of absence to visit relatives in Gaza. Louzon was then stranded in Gaza and requested an extended leave of absence.Ford extended the leave of absence, but by the time the Plaintiff could return to the United States, the extension had expired and Ford terminated Louzon. Louzon filed a national-origin discrimination lawsuit against Ford. At issue was who were Louzon’s“similarly situated” co-employees. The Trial Court ruled that the comparative employees must share the same supervisor. The Sixth Circuit reversed. The Sixth Circuit determined that it was important to look at multiple supervisors and employees to determine who was similarly situated to the Plaintiff employee. Louzon was one of 5,000 product engineers reporting to more than 300 managers and even fewer supervisors. The Sixth Circuit referred back to its analysis in Bobo v. United Parcel Service, Inc., 665 F. 3d 741, 751 (6th Circuit, 2012), noting that,“factors to be considered include whether the individuals dealt with the same supervisor, were subject to the samestandards, and engaged in the same conduct without differentiating or mitigating circumstances that would distinguish their conduct or their employer’s treatment of them for it.” A Court, “should make an independent determination as to the relevancy of the particular aspect of the Plaintiff’s employment status and that of the non-protected employee.”
Consequently, how a Court defines who is “similarly situated” is a key determination in defense of a discrimination lawsuit. The “similarly situated” employee may have the same supervisor, but depending on the circumstances of the position, there may also be other “similarly situated” employees. One should analyze whether there are other employees whoengaged in the same conduct, their positions and whether they were subject to the same standards.
In summary, in analyzing the potential risk for lawsuit on a discrimination claim, don’t limit your inquiry of “comparable conduct” to those employees with the same supervisor.
About the Author
Felix Gora is an Ohio State Bar Association Certified Specialist in Labor and Employment law. His practice is concentrated in theareas of employment, insurance, civil rights, personal injury, appellate, and aviation law. Felix’s appellate court background is a keyfactor in his selection to handle some of the most difficult procedural issues in litigation.
FGora@Rendigs.com | (513) 381-9278