Our previous post covered diversity in the workplace, including being sensitive to employees who display their religious beliefs through clothing or hairstyle. We advised employers to avoid making an issue of any such break of dress code as long as job performance was not affected.

That leads us to today’s topic: are dress codes still being established in businesses? A look around a scattering of companies reveals a variety of policies that are currently in force:

Retail: Most major chains enforce dress codes. Target, Walmart, Macy’s, and Costco all require their employees to either dress in business wear or uniforms. Target’s red top and khaki bottom outfits are familiar to frequent shoppers. Costco’s guidelines forbid facial piercings (even after Costco was sued for the policy on religious grounds). And what would Walmart be without blue vests everywhere?

Smaller, locally-owned establishments are usually a reflection of their clientele and surroundings. Some stores allow employees to wear whatever they want—which can be dangerous! The definition of “too casual” depends largely on your industry and where you’re located. West coasters tend to be more casual, and we’ve seen plenty of t-shirts, jeans, and flip-flops worn by sales clerks. If that’s a normal look in your area, your customers probably won’t think it’s a big deal—especially if they’re dressed the same way. In bigger cities and on the east coast, people tend to dress up more, and retail clerks’ dress reflects it.

Restaurants: Most restaurants have established dress codes, at the very least for health and safety reasons. Customers don’t usually care for a guy in a tank top taking their dinner order (as happened to a friend of ours recently!). Upscale restaurants see dressed-up diners who expect professional appearances for host and wait staff.

Health Workers: Scrubs are the norm in all areas of health care, from walk-in clinics to emergency rooms. Nurses, doctors, and dental assistants are usually decked out in scrubs for their entire work day—even television’s Dr. Oz wears scrubs for every appearance on Oprah’s show.

Professionals: Most law offices and finance-related businesses still require corporate dress for all staff, from CEO to reception. You don’t expect to see a board room full of people dressed in sweat pants and tennis shoes. Nor would most folks feel comfortable if their lawyer represented them in court while wearing a t-shirt and shorts! Suits, dress shirts and ties, skirts, and hose are still considered proper attire in the legal and financial fields.

Dress codes can encourage professional conduct and increase productivity for your employees. But beware: if you do not currently have a dress code in your company, your employees may resist it—so be sure to communicate your reasons clearly, and to enforce it consistently. When deciding what the dress code will entail, ask the following questions to avoid legal trouble:

• Is the policy fair for employees of both genders and all ages?
• Does it infringe on any employee’s religious beliefs?
• Does it infringe on a cultural aspect of a specific race?
• Would a disability prevent an employee from complying?
• Can employees fulfill their job duties when complying?

Chances are your company has become more diverse over the years, based on the changing demographics of the US population. Being sensitive to cultural differences between you and your employees is not only important, but it could keep you out of legal trouble, as well. 

With charges of religious discrimination in the workplace on the rise, here are some general guidelines you might consider. These examples are based on recent courtroom cases, and should not be construed as legal advice.

Be careful about dress and personal appearance codes. In the District of Columbia, a federal court ruled that firefighters cannot be forced to be clean shaven. The case began around concerns that respirators won’t fit the bearded firefighters properly. Those who wear beards for religious reasons were ruled to be exempt from the policy. 

Consider your company’s dress code, and how it applies to workers who wear head coverings or other religious dress. Courts would unlikely to find favor with an employer shown to be discriminating against employees for facial hair or religious dress. If an employee’s appearance does not affect their work, it’s best to leave the issue alone.

Be aware of what makes for a hostile work environment, and require your employees to be respectful to all co-workers. One worker sued her company after management ignored her requests for fair treatment. Her co-workers had repeatedly yelled at her when they could not understand her English. The court ruled against the employer on grounds of a hostile workplace after it found she demonstrated enough knowledge of English to do her job and ruled the co-workers were harassing the complainant.

Be flexible about days off. Don’t assume that all your employees share your faith or that everyone celebrates the same holidays. Respect your workers who request days off for religious holidays—even if you are unfamiliar with them. Communicate with all of your employees to create solutions that will work for both the business and the staff. Swapping days off or instituting floating holidays for everyone are two possibilities to consider.

Speaking of holidays, how does an employer celebrate holidays without offending employees? Whether your staff celebrates Hanukkah, Christmas, Kwanzaa, Ramadan—or nothing at all—must be taken into consideration. You will add to your employees’ job satisfaction and loyalty when you demonstrate your respect of their religious beliefs. 

At holiday time, instead of giving Christmas cards or bonuses, avoid singling out one religion by renaming  them “year end bonuses.” Instead of decorating a Christmas tree, honor diverse customs by allowing employees to bring in personal holiday mementoes, or to decorate a space together. Those individuals who do not wish to participate should never be forced to or treated any differently.  

If you’re an employer, read up on cultural diversity, or take a class if offered in your local community college. All companies can provide education to help managers learn about and model sensitivity to their workers’ religious beliefs and cultural differences. Remember, it is up to the employer to ensure that all employees are respectful of their co-workers, and to stop any harassing or insensitive actions when they occur. 

An employer is not allowed to ask questions related to disability or use medical examinations until after a job offer is made. Application and interview questions should be focused on non-medical job qualifications, employment history, and education. It is also acceptable to ask if the applicant can meet the job’s essential duties and requirements.  An employer is allowed to ask if a person with a disability will need a reasonable accommodation to do the job in question.

Questions You May Not Ask

You may ask how much time an applicant took off in a previous job (but not the reasons), why they left a previous job, and any past discipline. You cannot ask about their impairment or how they became disabled, about their use of medication, or about any prior worker compensation history.

After an employer has made an offer to a person with a disability, questions relating to the disability may be asked. It is also acceptable to conduct medical examinations, as long as you do the same for everybody in the same job category. If it becomes clear that a person with a disability cannot do the essential job functions, or would pose a significant threat of harm to the safety or health of himself or others, you may withdraw a job offer. Be sure to consider if there are any reasonable accommodation that would enable the disabled person to perform the duties of the job.

The ADA requires employers with 15 or more employees to make ‘reasonable accommodation‘ so that individuals with disabilities have equal employment opportunities. Such accommodations might include a sign language interpreter for a deaf person during an interview, regularly scheduled breaks for a diabetic to eat and monitor blood sugar, or someone to read bulletin board posts to a deaf person. An employer must provide such reasonable accommodation if a person with a disability needs one in order to apply, perform, or enjoy benefits of a job equal to those offered to other employees. Employers are not required to provide an accommodation that would pose an undue hardship, such as a significant expense based on your resources and normal business operation. Most accommodations are low cost, and can often be offset with tax credits.

The goal of the Americans with Disabilities Act is not to give individuals with disabilities an unfair advantage; it is to provide equal access and opportunities. Employers do not have to hire someone with a disability over a more qualified person. Employers do need to make sure that those with disabilities have an equal opportunity to apply for and work in jobs for which they are qualified; have equal access to the privileges and benefits offered to other employers (such as health insurance and training); are not harassed because of a disability; and have equal opportunities for promotion.

The ADA is a federal civil rights law that was designed to prevent discrimination of individuals with disabilities and to assist them to integrate into mainstream society. The enforcement of laws under ADA is handled by the EEOC (Equal Employment Opportunity Commission). The ADA applies to all businesses with 15 or more employees, and protects every person who has a mental or physical impairment that substantially limits one or more major life activities (like sitting, standing, or sleeping), who has a record (perhaps in the past) of a substantially limiting impairment, and who is regarded or treated by an employer as if they have that impairment (as in fear of hiring someone in remission from cancer due to fear of reoccurrence). The ADA only protects a person who is otherwise qualified for the job, and does not require the employer to hire a person with a disability over a more-qualified person.

A comprehensive criminal background check is an important tool for many employers. It is important to be sure that the check is performed within the law, but it is equally important to be sure that the information received is properly used in the workplace. An employer could be open to claims of discrimination if they have a blanket policy against hiring any applicant that has had a criminal conviction. An employer is also at risk for discrimination claims unless they can prove a business necessity for a clean criminal record, or can prove that requiring a clean criminal record has no adverse impact on any group protected by anti-discrimination laws.

The EEOC (or U.S. Equal Employment Opportunity Commission) enforces most of the federal laws which prohibit job discrimination. It is the job of the EEOC to enforce laws prohibiting employment discrimination based on age, disability, race, color, religion, sex or national origin, as well as making sure that men and women receive equal pay for equal work. EEOC also oversees and coordinates the practices and policies regarding federal equal employment opportunities.