Dress Code Policies: A Surprising Source of Risk for Employers

Feb 13, 2024

Although employers and employees alike often view dress code policies as a minor but necessary part of a business, recent litigation on the subject should give employers pause to reflect on the subject.  Even seemingly benign policies are being attacked from multiple angles.  A case involving Whole Foods Market illustrates several of the potential areas of risk.  In Kinzer v. Whole Foods Market, Inc., 652 F.Supp.3d 185 (D. Mass. 2023), employees alleged that Whole Foods’ discipline of employees who wore Black Lives Matter masks at work was unlawful discrimination and retaliation under both Title VII of the Civil Rights Act of 1964 and the National Labor Relations Act.

In that case, Whole Foods had a dress code policy that prohibited employees from wearing clothing with “any visible slogan, message, logo or advertising,” unless it was Whole Foods’ logo or branding.  With the onset of the COVID-19 pandemic, Whole Foods required employees to wear face masks that complied with the dress code.  Several employees were sent home for wearing masks with the words “Black Lives Matter” on them, but nevertheless continued to wear the masks and therefore continued to be sent home.  Eventually, the employees were terminated for having missed the requisite amount of work under Whole Foods’ attendance policy.  The employees filed charges of discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB), and then lawsuits alleging the same.  In January of 2023, the U.S. District Court for the District of Massachusetts ruled that the employees had engaged in protected activity by continuing to wear the masks, but that they failed to prove that their terminations were unlawful retaliation.  The decision is currently on appeal in the First Circuit Court of Appeals.

Employees have alleged that uniform policies violate the NLRA in other cases, too.  For example, in November of 2023, the Fifth Circuit ruled that Tesla’s non-discriminatory, content-neutral uniform policy was not presumptively an unfair labor practice under the NLRA, contrary to the NLRB’s decision on the matter.  In that case, Tesla, Incorporated v. National Labor Relations Board, 86 F.4th 640 (5th Cir. 2023), the Fifth Circuit held that the NLRB had exceeded its statutory authority by creating an extremely broad rule that essentially declared all uniform and dress codes unlawful absent “special circumstances.”   The case was an appeal from a 2022 NLRB decision that ruled that Tesla’s uniform policy, which required employees to wear specific uniforms in order to protect its vehicles from damage, infringed on its employees’ rights under the NLRA.  Specifically, the NLRB declared that “when an employer interferes in any way with its employees’ right to display union insignia, the employer must prove special circumstances that justify its interference.”  Tesla, Inc., 371 NLRB No. 131, slip op. at 1 (2022) (emphasis in original).  There, Tesla had informed employees who wore union t-shirts instead of their uniforms that they violated the uniform policy, which the NLRB said was unlawful interference with employees’ rights under the NLRA.  Notably, the NLRB decision was split, with the two dissenting Board members noting that under this decision, “no employer may lawfully maintain any dress code unless that employer can demonstrate special circumstances.”

Although the Fifth Circuit held that the NLRB’s new uniform rule exceeded its authority, it is important to note that this decision is only binding in Louisiana, Mississippi, and Texas, the geographic area covered by the Fifth Circuit.  In other words, the NLRB is still free to enforce this rule everywhere else in the United States, and historically has continued to enforce its rules outside a particular jurisdiction where it has been overruled.  Thus, employers should consider whether their uniform or dress code policies serve an important purpose, and are worth the risk of potentially having the NLRB claim they are unlawful.

Finally, if an employer does maintain a dress code or uniform policy, it should be prepared to make exceptions when necessary for a reasonable accommodation for disabilities or religious reasons.  When doing so, however, the employer should ensure that the request for accommodation is actually linked to a disability or sincerely held religious belief.  For example, if an employer maintains an otherwise neutral no-headwear policy, it may nevertheless be required to allow an employee to wear a head covering for religious reasons.  Similarly, if an employer requires closed-toed shoes in its office, there may be instances where it would be a reasonable accommodation to allow an employee with a disability to wear sandals.  In both cases, however, it is also possible that other employees may become jealous of such accommodations and wish to avail themselves of those exceptions as well.  Thus, an employer should not simply grant every request for a uniform or dress code exception without examination.  Rather, employers should consider the particular facts of each request, engage in an interactive process with the requesting employee, seek legal counsel when appropriate, and have a legitimate, non-discriminatory reason for their decision in each instance.

Given the potential risks and challenges with dress code or uniform policies, what should employers do?  First, employers should consider whether they actually need and enforce their dress code policy.  Without a compelling business reason for the policy, or without the desire and follow-through to enforce it, employers may be better off simply eliminating or at least scaling back such policies.  If, however, an employer does have “special circumstances,” as the NLRB would like to require, the employer should ensure that the policy is facially neutral and non-discriminatory, allowing for exceptions when necessary.  Importantly, this means that the policy should not discriminate on the basis of age, sex, gender identity, union status or support, religion, nationality, race, citizenship, or any other protected characteristic.

As always, we at K|W|W are available to help you analyze how these risks may impact your business and help you make the most defensible decisions possible. Your workforce is our priority.