- The 9th U.S. Circuit Court of Appeals upheld a local dress code ordinance forbidding scantily clad "bikini baristas" from working while dressed only in pasties and g-strings (Edge et al v. City of Everett, No. 17-36038 (9th Cir. July 3, 2019)).
- In response to complaints about the bikini barista stands that had been operating in and around Everett, Washington since 2009, the city passed an ordinance requiring that employees, owners, and operators of quick-service facilities cover "minimum body areas"; the city also broadened the definition of "lewd act" to include "the public display of specific parts of the body".
- The 9th Circuit concluded that the plaintiffs — a stand owner and several baristas — were unlikely to prevail on their Fourteenth Amendment void-for-vagueness challenges or their First Amendment free expression claim. Accordingly, it vacated a district court's preliminary injunction and remanded the case for further proceedings.
Legal challenges to uniform and appearance requirements are nothing new, but they more typically involve employees (or agencies on behalf of employees) challenging employer policies rather than local municipal codes. Greyhound, for example, was recently sued by the U.S. Equal Employment Opportunity Commission (EEOC) when it allegedly refused to accommodate a Muslim bus driver's request to wear religious attire in accordance with her beliefs.
In general, according to the EEOC, employers are allowed to establish a dress code that applies to all employees or employees within certain job categories, but there are some exceptions.
While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some employees' ethnic beliefs or practices, a dress code cannot treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or Indian attire, but otherwise permits casual dress, is likely to be problematic.
Additionally, if the dress code conflicts with an employee's disability or religious practices, and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship.
Note, too, that uniform requirements can implicate wage or hour issues: Employers, not employees, are generally responsible for the costs associated with required uniforms, and the provision of a uniform cannot be considered part of a worker's wages.
Many employers are moving toward broader dress codes to streamline administration, facilitate inclusiveness, and avoid legal challenges.