Director of Business Development for the UK & Europe, Avitus Group

Read the class-action lawsuit against Abercrombie and Fitch

Navigating appropriate workplace appearance policy law in the United StatesNavigating appropriate workplace appearance policy law in the United States

When a company considers expanding its footprint to the United States, tattoos, piercings, and skirt length is part of the process. Yes, it really is.

Workplace appearance policy is a hot topic in the U.S. right now. Many employers could use help on this topic, especially following industry news of the class action lawsuit against Abercrombie & Fitch, a national retail-clothing store. Human Resource experts advise that an employer can dictate what they want from their employees while on duty from a dress code perspective, as far as what to wear, piercings, tattoos, etc., as long as the policy is not discriminatory.

That is where employers can have exposure, and need to know what is considered discriminatory. According to the U.S. Equal Employment Opportunity Commission or EEOC, a company can set a formal or casual dress code depending on the personality of the organization. That code can apply to all employees or employees within certain job categories. However, there are exceptions and that is where most employee lawsuits stem.

The issue often comes up when an employer is trying to present a certain business culture to the public. If the employee is on the front line with tattoos, piercings, etc. that may counter the business’s culture, but which the employee states are part of their religion and/or religious belief, the employer would need to make a reasonable accommodation and find a solution to maintain their business image while not impinging upon the employee’s rights. In the business, we call this an ‘interactive process.’

The longer it takes to address the situation or enter into the interactive process; the employer’s argument of an “undue burden” on the company dissipates. Many cases have been lost because three to four months go by before entering into an interactive process and/or terminating an employee for not complying with the dress code.

For example, a recent case was lost due to an individual growing his beard after he was hired, claiming it was part of his new found religion. The employer failed to enter the interactive process and termed him after warning him on three different occasions. The employer claimed it was an undue hardship on the company and the employees were required to follow dress protocol and policy. The employee received an undisclosed amount in settlement.

Under the EEOC, the courts do not require an employee to prove they subscribe to a particular religious practice and/or belief, or that it needs to be generally known to the public to be valid. Nor do they want to get involved in individuals’ belief systems. For these reasons, it is often difficult to prove an employee was not harmed. Very few employers win these cases. One example making headlines recently is a headscarf lawsuit involving Abercrombie & Fitch, where the company paid more than $25,000 to settle the headscarf lawsuit. Now, according to news reports, a California Federal Judge has certified a class action lawsuit for some 62,000 employees of that store.

These are the stories from the trenches of international business, and I’m excited to provide additional best practices guidance throughout the year.