Freedom of wardrobe?

Where does an employee's right to wear a particular item of clothing begin and an employer's right to impose a dress code end? That is a tough call for some businesses these days, and, to sort it out, employers and employees sometimes are pitted against each other in court.

Employment law experts say that, especially when the employee wants to wear clothing in connection with a religious or cultural observance, the employer either should try to accommodate or should have a written dress code that makes clear why it won't.

LEITA COWART/Special

Darren Summerville works in employment law for Bondurant, Mixson & Elmore. He said that a company should make its dress policy clear during the hiring process. "Like almost anything in law, there are no hard-and-fast rules," he said. "I recommend that employers have a dress code and keep it as general as possible. This is not a 'get out of jail free' card, but it does offer a first defense."

"For a long time this issue wasn't on the radar," said Darren Summerville, an attorney who works in employment law for the Atlanta firm Bondurant, Mixson & Elmore. "For a long time people wore suits or a uniform to work. But with the advent of business casual and after 9/11, more of these issues are popping up."

Recent Georgia cases of clothing or appearance controversies in the workplace include:

• The Atlanta regional office of the Equal Employment Opportunity Commission has a pending lawsuit against AAA Parking, charging that managers of a downtown parking lot improperly dismissed a Muslim woman who wanted to wear a headscarf during Ramadan. She was not wearing a scarf when she was hired. When she reported for work with one during the first day of religious observance, she was suspended. When she returned the next day to appeal to a manager, she was fired.

• Atlanta-based RaceTrac Petroleum Inc. agreed in February to pay a former employee $125,000 to settle a religious bias and retaliation lawsuit. The suit alleged that the worker, a Rastafarian, was denied the right to wear a headdress to cover her dreadlocks as a sign of religious devotion.

• The Augusta hub for Memphis-based FedEx paid $70,000 to a former employee in a consent decree arising from the lack of a clear policy about accommodating employees with beards. The Rastafarian employee said he wore a beard in connection with his religion. FedEx also agreed to make its appearance policy more explicit, especially in its accommodation for religion.

Not many of these cases get to the litigation stage, Summerville said. Often, the employer reaches some accommodation or settles without admitting any wrongdoing.

"Like almost anything in law, there are no hard-and-fast rules," Summerville said. "I recommend that employers have a dress code and keep it as general as possible. This is not a 'get out of jail free' card, but it does offer a first defense."

Employers should be motivated to tolerate individuality in the work force, barring significant and tangible safety or economic issues, said Bill Kahnweiler, a professor of human resources at Georgia State University.

"A lot of employers say they want to attract good people, and they want to be an employer of choice," Kahnweiler said. "If you get a reputation as intolerant, talented people will vote against you with their feet."

Summerville says companies sometimes can sort out these issues during the hiring process. For example, some restaurants and delivery companies require employees to wear hats or caps.

"If a woman shows up in a head-scarf, the employer should say, 'We have required headgear that has the company logo on it, and will that be a problem?' " Summerville said. "But if you say, 'You can't work for me because you have a headscarf,' that's illegal. You can't change the policy after you hire someone."

Robert Dawkins, an attorney with the Atlanta regional EEOC office, said he has seen several cases in which an appearance policy remained the same, but managers changed.

"You can have one manager who works it out and then have a new manager who comes in and says, 'We're not going to have that,' " Dawkins said.

Even accommodations can be tricky. Typically, if an employer is seeking to avoid the bad publicity and legal ramifications of a discrimination complaint based on religious dress, he or she will try to give the employee an equivalent, less public job within the company. For example, if the issue is wearing headscarves during Ramadan, an employer with a policy of uniform public appearance could move the employees to back-office jobs during the holiday and return them to the public-contact jobs afterward.

But Dawkins said that even that approach has pitfalls.

"You run into problems where the [accommodation] jobs are less desirable," he said. "You can't move an employee to the dungeon."

Defending a dress code for an employer in these cases often boils down to making a business case or safety justification for the dress code and showing that it's applied equally to everyone. Even then, employers may have to show that making an exception on religious grounds would cause an undue hardship.

To help employers strike the right balance, Summerville offers a plug for services available from Dawkins' organization.

"The EEOC has an abundance of free programs and will come into the workplace to acquaint employers with the rules," Summerville said. "I urge all my employer clients to take advantage of that."