Is there Room for the Promise Keepers in the Dress Code? - can dress code legally exclude religious items - Brief Article

Workforce, Sept, 2000 by Matthew T. Miklave, A. Jonathan Trafimow

Q: Our company recently announced that we no longer have a dress-code policy. The employees are free to wear whatever they deem appropriate: i.e., shorts, sandals, sleeveless shirts, jeans, etc.

Now the company is saying that employees cannot wear clothing or personal effects of religious significance, such as Promise Keepers or Woman of Faith articles of clothing. Employees are allowed to wear clothing supporting sports teams, alcohol, etc. This does not seem right. Is this legal?

A: While an employer must be neutral toward religion in most cases, an employer cannot be may "hostile" toward religion. Here, one could claim, the employer was hostile toward expressions of religious faith. The boss lets the non-religious message be communicated (as with a T-shirt that says, "Tune In, Turn On, and Drop Out"), but not the religious message (the T-shirt that says "Trust God"). If we were the employer's lawyers, we would want to reconsider this policy.

There are perfectly legal ways to restrict messages so they do not disrupt the workplace, and most employers probably would not want employees wearing T-shirts showing pictures of an aborted fetus (or child, baby, almost-person-pick you P.C. term). There are ways to draft such a policy, but caution is always good advice.

Matt Miklave is a partner and A. Jonathan Trafimow a senior associate in the law firm of Epstein Becker & Green PC, one of the nation's largest firms representing management exclusively in all areas of labor and employment law, employee benefits, and related litigation.