Dress Codes And Discrimination Claims

Wed, 06 Nov 2013

By Nabila Mallick

Dress codes in the workplace are not uncommon[1]. Most Employers have a certain standard of dress in the workplace, whether enforced through contractual terms or through customary practices. More recently, we have seen informal advice given by senior solicitors to new female recruits at Berwin Leighton. The advice was addressed specifically at women.[2]

Dress codes can give rise to a number of different types of claims. For example, a Jewish man may feel discriminated against by the restriction on headwear   such that he is not permitted to wear his skull cap (kippah)[3], a Muslim woman because she can not wear a head cover or body wrap in workplace or a non religious woman told that she must wear a high collar blouse and a skirt not a pencil higher above her knee. Then there are more complicated cases where Transgender persons may wish to wear skirts of a certain length that allow them to feel more feminine but make others feel uncomfortable by what is exposed. The problem with uniform dress codes for the Employer is that you may not be able to apply the policy in a uniform way. 

Sex discrimination claims challenging the imposition of a dress codes seem to favour the Employer. In Denise v Metropolitan Police Department (2013), a male trainee police officer, had shoulder length hair, which he kept in a bun. The police force distinguished between men and women, where men were required to wear their hair short and women were required to wear it in a bun. The male trainee was asked to cut his hair. He brought a claim for indirect sex discrimination. The EAT decided that the ET was right to dismiss the claim on the basis that whilst, when enforcing gender specific provisions in dress code, it is likely that one sex may be treated less favourably than the other. However the Claimant could not be said to be treated less favourably if the dress codes leads to equivalent standards. In a claim made just after the Sex Discrimination Act into force, Schmidt v Austicks Bookshops (1978), Schmidt, a female employee challenged her employer’s insistence that women should not war trousers. The Tribunal found in favour of the Employer, holding that different dress codes for men and women are acceptable as the burden of restrictions on men wee equal to that placed on women. In Hutchieson v Graham and Morton ltd, a senior female manager was required to wear the same nylon overalls as the rest of her female team. The males on the other hand were allowed to wear lounge suits. It was held that this amounted to a detriment because the uniform pointed towards a lower status than that of male employees of a lower rank.   However in Secretary of State for DWP v Thompson [2004] IRLR 348 the Employment Appeal Tribunal decided that it was not necessarily discriminatory to impose a certain dress code on men (i.e. the requirement to wear a shirt and tie) but not on women.

Therefore placing dress code restriction on one sex but not the other does not necessarily mean that there is discriminatory treatment. Much will depend on the explanation by the Employer for the distinction.

Race discrimination claims can arise from the imposition of blanket uniform policies, which can indirectly discriminate against particular employees. In SG v St Gregory Catholic College, the school uniform policy prohibited comrow[4] (braided) hairstyles. On joining SG, a boy of Afro Caribbean ethnicity, who had, since birth, had comrows because of family tradition, was told that he was prohibited from wearing comrows, He brought claims of discrimination. The court held that the policy constituted indirect race discrimination, because the school should have made an exception to its legitimate aim of suppressing gang culture, because of a genuine cultural practice. Similarly, Singh v Greater Manchester police, where a Sikh officer was asked not to wear a turban during riot training, this requirement was held to be indirect race discrimination.

In Eweida v British Airways, a Christian employee who had not been successful against her employer’s in the Tribunal under the discrimination legislation, succeeded in the European Court, where it was held that she had the right to wear her cross[5] under Article 9 ECHR, which accorded to employees the right to freedom of thought, conscience and religion. The ECHR ruled that, in general individuals had the right to manifest their religious beliefs so long as this does not impinge on the rights of others. In the event there is a conflict, an employer must balance this right of an employee against the eights and freedom of others. The ECHR considered BA’s uniform policy aimed to protect it corporate image but impinged on Eweida’s religious freedom.   

A greater tension has been created by Muslim’s women wishing to wear the Hijab[6]. In the US, Abercrombie  &Fitch, the rock ‘n’ roll of fashion has settled a hijab discrimination law suit after a federal judge held on the 3rd September Abercrombie liable for religious discrimination for finding a Muslim teen, had been dismissed from her stockroom position after she refused to remove her hijab. The company argued that the hijab violated its ‘look policy’ and that her wearing the headscarf would have resulted in undue hardship on its business. Under the terms of the settlement, the company agreed to reform its hiring practices. Abercrombie are said to have revisited their ‘look policy’ throughout all their stores.

Recently, in UK Tribunal claim a Muslim woman who claimed unfair dismissal and religious discrimination against a London store who wished to preserve a trendy image, was forced her to resign for insisting on wearing the hijab, under the pretext of being late back from lunch. The Claimant did not succeed in her claim for direct discrimination but did for unfair dismissal. The Tribunal expressed regret in their decision that she did not bring a claim for indirect discrimination.[7]  

In Noah v Sara Desrosiers (trading as Wedge) (2007) ET, a Muslim stylist complained that she was refused a job in hair salon because she wore a headscarf (‘the hijab’). It was made clear to Ms Nosh during the interview process that having her hair on show was a basic requirement for stylists. When the Ms Noah complained of religious discrimination, the Salon argued that it was not influenced by Ms Noah’s religion when she was asked to show her hair at the interview, as this would have been asked of anyone at the salon. Ms Noah’s claim of indirect discrimination failed but her claim for indirect discrimination succeeded, as the Salon had failed to demonstrate how the requirement of displaying hair by hairdressers was a proportionate means of achieving a legitimate aim of business promotion.  

In Begum v Pedagogy Aurus UK LTD, the court found that an Employer had not discriminated against an employee by requiring her to wear a shorter Jilba (outer cloak: from neck to ankle in length). After an interview she was appointed as a nursery assistant role. At the interview she was asked if she could wear a shorter jilba, as in the past, another female employee had tripped over long trousers. She was told that her long Jilba was considered a health and safety risk. Various options were discussed. She was not told she could not wear a Jilba. She claimed religious discrimination in the Tribunal. She was not successful. The rationale behind the interview request to wear a shorter jilba was that the nursery’s health and safety responsibilities were proportionate and reasonable. The requirement that no garment should be worn that caused a risk of tripping did not cause an unfair disadvantage to Muslim women and in any case, it was justified on health and safety grounds.[8]

Some Muslim interpret the obligation to ‘cover,[9]’ as including the face veil (‘niqab’), Aisha Azmi, was employed as a support worker at school. She did not raise her wish to wear the face veil at the interview. She later asked to do so on the grounds of her religious beliefs. The school investigated to see if it could accommodate her request, but found that children learned better when they could see the whole face. Therefore the school instructed her to remove the face cover when working with children, she could wear it at all other times.[10]   On a claim of religious discrimination, the court agreed that the school had applied a practice that put people of Mrs Azmi’s religion at a disadvantage. However, the practice was justified as there was objective evidence that when she was wearing the veil, children did not engage with her as well as when she was unveiled. The requirement was proportionate as the school allowed her to be veiled when she was not teaching.

Mohammed v West Coast Trains Ltd (2006) EAT, was a decision concerning the topical subject of beard[11] wearing by Muslim men. Mr Mohammed was employed as a customer service assistant. He had worn a beard as part of the practice of his faith. He kept his beard at a certain length for religious reasons, however this did not comply with the company dress code. In 2004, he was dismissed for lack of enthusiasm. He brought a claim for direct and indirect discrimination could be inferred. The Tribunal found that asking Mr Mohammed to trim his beard was not an act of religious discrimination. The EAT upheld the decision. 

Transgender cases can be the most complex in respect of dress codes. For instance a male transgender person transiting to a female may commence by wearing an ill-fitting dress. In one such case, the employee wore skirts without belts, which allowed the top of her bottom to be exposed. Redressing this proved tricky, the Employer was concerned that this was simple exhibitionism rather than poor judgement on the part of the Transgender during the transition. The Employee made accusations that she was being criticised discriminatorily. Conversely, the Employer faced complaints from Employees who felt uncomfortable by the Transgender Employees immodesty. In such circumstances, to avoid discrimination claim, it is advisable to the Employer to provide support and advice through counselling and other means on dress wear etc. [12].

Conclusion

An Employer is permitted to apply a dress code for both men and women, just as long as they are applied to both men and women. An Employer may get away with the requirement to have employees wear make up, as long as employees do not suffer any detriment. Dress Codes that conflict with the expression of religious identity can be justified, such as on health and safety grounds. However, Employers must be too astute to ensuring that any dress code policy allows for exceptions, particularly, on the grounds of Gender Reassignment[13], Religious expression and Disability Discrimination.  

Nabila has acted for Employers and employees since 1999, she has an interest in advising in religious discrimination in the workplace. Please click here to view her profile.

 

[1] Personnel Today dated 4th April 2011 reported that 9 in 10 (89%) Employers that have dress codes in place take steps to ensure that their policy does not discriminate.

[2] By contrast to some informal work place advice, the TUC has called for a relaxing of dress codes, particularly in the summer (July 2013)

[3] Kippah known as yarmulke (from the Aramaic ‘fear of god’), worn out of the orthodox belief that the head should be covered at all times –(Talmud states ‘ cover your head in order that fear of heaven may be upon you’) considerable debate as to whether or not wearing the kippah at all times is required, as some Jews believe that it is simply an extra measure of piety.  

[4] Cormrows, also known as rows, braids or canerows, are traditional African style hair grooming where the hair is braided very close to the scalp. It is tradition thought to date to 500BC. (Rastafarians wear uncut hair in dreadlocks as an expression of faith.)

[5] The wearing of the ‘cross’ is itself the subject of much debate amongst Christians. Those Christians who advocate the wearing of the cross rely upon the biblical verse ‘God forbid that I should glory, save in the cross of our Lord Jesus Christ’ – Galations 6: 14.  This expression of faith is comparable to Hindu women’s ‘mangal sutra’ (necklace) and red spot (albeit worn after marriage). 

[6] There is a widely held belief that the ‘hijab’ is prescribed for women in the Quran. This is not necessarily a view held by all practicing Muslim women.

The dispute arises from the interpretation of 24: 30-31 – ‘they should draw their coverings over their necklines and not reveal their charms except to their husband. ....’ The verbal root of the word means to cover or to shut out.

[7] It may be possible to argue indirect sex discrimination by demonstrating that a dress code has disproportionate impact on women –and the fact that proportion of women is able to comply does not preclude such a claim. For example in London underground v Edwards (no2) [1998] IRLR 364 CA held that the ‘considerably smaller ‘ test has been satisfied and disproportionate impact proved. Permitting, therefore, claims of indirect sex discrimination by religious minorities. 

[8] The classical position that the jilba is obligatory is the view generally held by contemporary scholars as well. The Quran at 33: 59 instructs that Muslim women to cloak themselves as a defensive measure against sexual harassment. However, what is contentious is the extent of the cover.

[9] Quran 24: 30-31- (see footnote 6)

[10] Surah 24:30-31, irrespective of how the extent of the requirement to cover is interpreted. There is exemption from ‘covering up’ in front of children under the age puberty. So however, one looks it the instructions of the school was not unreasonable.

[11] There is no mention of the obligation to wear the beard in the Quran, however Muslim men wear it as a sign of piety – a sign that you are trying to walk in the path of the prophets.

[12] Oxford University has this year rewritten its rules on its strict academic dress code following concerns that they were unfair to transgender students.  Students will no longer have to wear ceremonial dress according to their gender when sitting their exams. The dress code regulations have been amended to remove any reference to gender, in response to concerns that existing regulations did not serve the needs of transgender students.

[13] The Sex Discrimination (Gender Reassignment) Regulations 1999; The Equality Act 2010 he Equality Act 2010 ‘gender reassignment’ is named as an explicit protected characteristic, alongside age, disability, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

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