Strict dress code enforcement can bring EEOC claims

By Janette Levey Frisch

Many employers require adherence to dress codes in order to ensure a certain image. According to the U.S. Equal Employment Opportunity Commission, though, some employers go too far, and religious discrimination claims based on strict application of dress codes and “look” policies have increased in recent years.

Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating based on race, color, religion, sex or national origin, and from retaliating against those who either complain of discrimination or participate in an investigation of discrimination allegations.

In EEOC and Khan v. Abercrombie & Fitch Stores Inc., the clothing store refused to make exceptions to its “look policy” and fired a young woman who wore a hijab (religious scarf ). The court found this refusal to be religious discrimination. Why?

Because Title VII protects against: Denial of a reasonable accommodation for sincerely held religious practices, unless the accommodation would cause the employer undue hardship; Workplace or job segregation based on religion, religious dress or other religious practices; and workplace harassment based on religion.

In short, Title VII requires employers with 15 or more employees to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices. Examples include wearing religious clothing or articles (e.g., a Muslim hijab, a Sikh turban or a Christian cross); observing religious prohibitions against wearing certain garments (e.g., a Muslim, Pentecostal Christian or Orthodox Jewish women’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard or Rastafarian dreadlocks).

Suppose an employer a) refuses to hire, b) fires someone or c) moves an employee to a non-customer-facing position, because the employer fears that the religious dress or grooming practice will bother customers. Per the EEOC, the first two practices are a denial of a reasonable accommodation and the third is segregation based on religion, both of which are illegal under Title VII.

An exception is if the dress or grooming practice presents a safety hazard or imposes an undue hardship. (For an accommodation to be an undue hardship it must be more than a minimal cost.) Similarly, a dress or grooming practice done out of personal preference only is not entitled to any accommodation. Further, if the applicant or employee does not tell an employer that s/he engages in certain dress or grooming practices based on a sincerely held religious belief, then the employer will not be liable if it takes adverse action.

Employers confronted with challenges to their dress codes or uniform or “look” policies should try to make a reasonable accommodation, such as allowing a Pentecostal Christian or Orthodox Jewish woman to wear matching skirts instead of pants as part of a uniform, if doing so does not result in a safety hazard or impose undue hardship.

Contingent workers provided by staffing companies are also protected under the same laws. When a client insists on either not hiring or terminating an employee seeking a religious accommodation in the face of a dress code or “look policy,” the staffing company must tell the client that such treatment is illegal, and should then endeavor to place the employee in a similar position elsewhere. Furthermore, the staffing agency should not place anyone else with the client, unless and until the client changes its practices. Going along with a client preference that violates any law renders the staffing agency in violation of the same law(s) and exposes it to significant potential liability. If you have any doubts or concerns, consult either your in-house counsel or competent employment counsel.

Attorney Janette Levey Frisch can be reached at

The EEOC has issued detailed guidance and examples on religious garb and grooming in the workplace. Interested employers can access them at