Dress Code and Personal Appearance Policies: Best Practices for Hoteliers

By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | January 06, 2019

This article was co-authored by Lauren Stockunas, Associate, Fisher Phillips LLP

A personal appearance and dress code policy exists at the vortex of many competing, and often opposing, considerations. Hotels should present carefully crafted images to their guests to maximize the guest's experience, stand-out amongst competitors, and convey their hotel's theme. However, employees' individuality and personality can be stifled by a strict dress code and personal appearance policy and a strict policy can make the hotel more vulnerable to discrimination lawsuits.

As such, hotels must be mindful of how gender and religious practices intersect with a personal appearance policy. If an employee's gender or religious beliefs are impermissibly impacted, a hotel risks facing a lawsuit or a charge with the Equal Employment Opportunity Commission ("EEOC"), the federal agency tasked with investigating allegations of discrimination, harassment, or retaliation in the workplace, or the state agency equivalent.

Creating the Policy

All hotels should have an employee handbook clearly laying out the company's policies. Within the handbook, there should be a dress and personal appearance policy that keeps confusion to a minimum and holds employees accountable.

Dress codes and personal appearance policies exist along a spectrum, with some being extremely detailed and others left vague. A policy that is too vague risks confusing employees, diluting the hotels' image, and being difficult to enforce consistently. However, such a policy offers important benefits including maximum discretion for employers. This flexibility allows supervisors to handle concerns on a case by case basis and avoids implementing a policy that risks becoming facially illegal as the law evolves. Additionally, it can avoid the appearance of micromanagement.

Employers must also be careful to not inadvertently set themselves up for a disparate impact lawsuits. For example, a blanket policy banning employees wearing hats seems safe enough; however, Muslim or Jewish employees could have a religious discrimination claim due to the employer refusing to accommodate their religious headdress. Additionally, a dress code policy that forbids women from wearing pants and requires women to wear skirts while men are permitted to wear pants would likely face problems in front of a judge as well.

While every hotel is unique, there are some common elements that every policy should contain. A personal appearance policy should inform employees what the hotel expects. Language such as "We expect all employees to use good judgement with respect to their dress and appearance and to present a neat, well-groomed appearance, and a courteous disposition" generally puts employees on notice of what the hotel expects without being overly specific.

The dress code and personal appearance policy should also contain language that makes clear what dress is impermissible in a neutral way. For example, employers can generally require employees to dress and present themselves in a businesslike manner that reflects a professional image. Hotels should also consider prohibiting flashy, ill-fitting, revealing, offensive, and other non-businesslike and distracting clothing. Additionally, the policy should state that employees are responsible for properly wearing and maintaining hotel issued uniforms at all times while on duty with the hotel if uniforms are required. The policy should note that management can send an employee home for any violations, and that time spent away from work due to a violation will be unpaid.

"Gender Based" Versus "Gender Neutral" Policies

Federal and state law protect employees from discrimination due to an employee's gender. In order to comply with the law, employers should ensure that their Dress Code and Personal Appearance Policy is as gender neutral as possible to avoid discrimination claims. For example, a policy should not simply prohibit women from wearing strapless tops and dark nail polish, it should ban all employees from wearing strapless tops and dark nail polish.

However, all distinctions between men and women are not necessarily prohibited. Under the law, distinctions are permissible so long as they do not create an "unequal burden" on one gender as compared to the other. In the US Court of Appeals for the Ninth Circuit (which has appellate jurisdiction over California, Arizona, Nevada, Oregon, Washington, Alaska, Hawaii, Idaho, and Montana), the court upheld a dress code policy requiring female casino waitresses to wear makeup even though there was no similar requirement for male waiters to do so.

The court examined the policy and found that it created a uniform and professional standard to which all waiters and waitresses had to comply. The court also held that there was no evidence showing that the policy impermissibly forced waitresses to conform to gender stereotypes or face sexual harassment. Thus, courts have approved such distinctions, but policies still must be drafted with care.

Employers can also defend themselves against a discrimination claim based on a dress code or personal appearance policy if the employer can establish that sex is a bona fide occupational qualification for the position. The employer must show that there is a legitimate business need or justification for the policy. The fate of an employer's defense will often depend on the nature of the work and type of job involved in the dispute.

Be advised that the law has not yet fully developed when it comes to personal appearance policies governing transgender employees. Transgender protections under federal law remain an open question. The EEOC has interpreted Title VII to cover transgender employees, whereas the Attorney General Jeff Sessions is on record against this interpretation. However, despite the federal uncertainty, many state laws do explicitly protect transgender employees. Consult your local Fisher Phillips employment attorney to determine if there are unique statutory requirements for your business.

The Intersection between Appearance Policies and Religious Accommodations

Personal appearance policies often implicate an employer's religious accommodation policies and must be examined carefully in the context of both Federal and State law. Title VII of the Civil Rights Act of 1964 covers all employers (including private employers, and state or local agencies) with 15 or more employees. Under Title VII, denying a reasonable accommodation based on religion, often in the form of refusing to make an exception to a dress code requirement, can create liability.

For example, in 2015 the Supreme Court held 8-1 that Abercrombie & Fitch violated federal law by not hiring a practicing Muslim who wore a headscarf as the headscarf violated Abercrombie & Fitch's "Look Policy," which controlled how employees dressed. The Court held that Abercrombie & Fitch's decision to not hire the potential employee violated the law, even though the employee had yet to ask for a reasonable accommodation to the "Look Policy" allowing her to wear her headscarf.

Although a hotel need not allow a deviation from a policy if doing so would create an undue hardship, this is a high bar to meet. The EEOC considers several factors when determining if an accommodation is an undue hardship, including: the cost of the accommodation, whether it compromises workplace safety, reduces efficiency, violates other employees' rights, or if it requires other employees to do more work as a result of the accommodation.

Additionally, as emphasized in the case against Abercrombie and Fitch, an employee is not required to undertake any formal process to seek an accommodation. Typically, accommodations are sought verbally or in writing to an employee's supervisor. Once a hotel is aware that an employee has a conflict between religious obligations and job duties, management has a duty to engage in an interactive process to discuss the request and brainstorm about ways in which the employee can be accommodated.

Therefore, it is important for the hotel to thoroughly train supervisors to watch for accommodation requests and not simply ignore them without reporting them up the chain to Human Resources or addressing the request themselves. It is the hotel that has an affirmative duty to engage in the interactive process once it becomes aware of a request for an accommodation and this duty cannot be neglected.

Religion is defined very broadly, and includes more established faiths such as Christianity, Islam, Judaism, Hinduism, and also newer emerging faiths. A person does not have to attend worship services or follow the exact teachings of the faith in order to be considered religious. However, social, political, or economic philosophies are not considered to be religious, even if these views are strongly held by an employee. Determining whether a practice is religious must be judged on a case by case basis, and depends on the employee's subjective motivations rather than objective actions.

Also note that although Title VII applies to dress and grooming practices when the employee dresses in a certain way due to religious observation, it does not apply when an employee dresses in the exact same manner for secular reasons. For example, Title VII would cover a Jewish employee wearing a Yamaka or a Christian employee wearing a cross for religious reasons, but it would not cover a secular employee wearing those items as a "fashion statement."

To avoid liability, federal and state law governing religious accommodations must be forefront in any hotel's dress code and personal appearance policies. A proper balance must be struck between maintaining a personal appearance policy that accommodates an employee's protected religious expression.

Conclusion

Employee appearance is a critical aspect of a hotel's business. Ensuring that employees are dressed consistently with the image the hotel is hoping to convey can best be accomplished by a written dress code and personal appearance policy that appears in the employee handbook. However, employers must implement compliant policies to avoid any issues or claims arising from gender discrimination, gender identity/expression or religious expression in the workplace.

This article provides an overview of the law and is not intended to be, nor should it be construed as legal advice for any particular fact situation.

Ms. Stockunas Lauren Stockunas is an associate in the Fisher Phillips' Irvine office. She represents employers in a variety of employment law matters including wage and hour, WARN Act, discrimination, harassment, and retaliation litigation.  She also frequently advises clients on implementing and drafting various handbook policies such as vacation, paid sick leave, and medical leaves of absences.   Prior to joining Fisher Phillips, Ms. Stockunas interned with a boutique employment law firm specializing in serving hotels and restaurants in the hospitality industry. She also externed for the Honorable Karen S. Crawford and the Honorable Cynthia A. Bashant at the United States District Court for the Southern District of California. During law school at the University of San Diego School of Law, Ms. Stockunas was President of the Student Bar Association. She also served on the San Diego Law Review, Vols. 53 & 54 and the Executive Moot Court Board. As a moot court competitor, she won First Place Best Oralist at Emory University's Civil Rights and Liberties National Moot Court Competition and Third Place Best Oralist at USD Law's Paul A. McLennon, Sr. Honors Moot Court Competition.  Ms. Stockunas continues to serve her alma mater as the Recent Alumni Chair on the University of San Diego School of Law's Orange County Alumni Chapter Board.  She is also a member of the William P. Gray Legion Lex American Inn of Court.   

Mr. Mavros John Mavros, Attorney at Law, is a partner in Fisher Phillips' Irvine office. His practice involves representing employers in all aspects of labor and employment law, including wrongful termination, discrimination, harassment, and retaliation. His practice also involves representing employers against unpaid compensation claims, including unpaid minimum wages, overtime, meal/rest period premiums, vacation pay, and/or business expenses, on both an individual and class action basis. Mr. Mavros defends all types of businesses involved in civil litigation or arbitration. This includes defending claims brought before the Division of Labor Standards Enforcement (DLSE aka the Labor Board) and the California Unemployment Insurance Appeals Board. His practice also includes preventative counseling. He regularly assists employers with employee handbook preparation, wage/hour audits, new hire policies, employee compensation plans, severance agreements, reductions in force, and day-to-day workforce issues. He also conducts sexual harassment prevention training as mandated for all California employers by AB 1825. John Mavros can be contacted at 949-798-2134 or jmavros@laborlawyers.com Extended Biography

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