by Jennifer Carsen, J.D.

There are several reasons to have a dress code at work, according to Ilene Berman, a partner in the Atlanta law firm of Taylor, Busch, Slipakoff, and Duma, LLP. Berman was a presenter at BLR's 2007 Employment Law Update conference in Orlando, Florida.

"Clothes make the image," Berman says, and a dress code can also help encourage productivity and professionalism. She noted that business casual is on the decline: while 53% of U.S. employers allowed casual dress every day in 2002, only 38% of employers permit it now.

Legal challenges to dress codes are often based on allegations of gender bias, religious bias, race/national origin bias, or disability bias. Berman notes that smart employers should ask themselves the following questions:

1. Does my policy create a burden for one gender, but not the other?
2. Does my policy infringe on an employee's religious beliefs?
3. Does my policy infringe on a cultural aspect of specific race or national origin?
4. Does any covered disability prevent an employee from complying with my policy?
5. Is complying with my policy differentially difficult for workers over the age of 40?

Berman discussed several recent cases in this area, with varied outcomes for the employer. Harrah's Casino was allowed to require female employees to wear makeup; the court ruled that this policy did not require women to bear an unequal burden in terms of cost and time.

Alamo Rent-A-Car, on the other hand, was forced to pay $287,000 to a Muslim employee who was not allowed to wear a headscarf during the holy month of Ramadan. The court found that the employee had a bona fide religious belief, and that Alamo had not demonstrated efforts to reach a reasonable accommodation with the employee.

Berman noted that it is important for employers to make efforts to accommodate employees who claim exemptions from the dress code. Costco Wholesale Corp. won a case against an employee who refused to remove her facial piercings, in violation of Costco's dress code policy. Costco suggested several accommodations, including having the employee wear clear jewelry in the piercing holes or covering them up, but the employee rejected them all. The court noted that the only accommodation the employee would accept--a blanket exemption from the policy--would have imposed an undue hardship upon Costco.

To avoid trouble, Berman recommended the following:

• Be specific about what is and isn't permitted
• Have your policy match your corporate culture and public image
• Base your policy on reasonable business or safety considerations
• Don't overly burden one gender
• Use common sense when evaluating whether an employee violated your policy
• Enforce your policy as consistently as possible