The discrimination of dress codes

It’s common in the workplace for employers to set a dress code or an expectation of uniform for their employees, whether for reasons of safety, professionalism, or a combination of both.

Often dress codes will outline general limitations or guidelines for employees, such as requiring enclosed shoes with grip or prohibiting revealing clothing. Alternatively, other dress codes may designate a specific company uniform, particularly in customer service or sales sectors of the retail industry so customers can easily and effectively identify representatives of the business.

Employers are permitted to specify dress requirements in the workplace if they don’t discriminate against an individual. Discrimination is illegal, and an employer cannot treat an individual unfairly because of a protected characteristic, such as their race, sex, age, disability, gender, or intersex status. Protected characteristics are defined in the Fair Work Act 2009 (Cth).

How can a dress code discriminate?

Discrimination can present in a range of forms; however, it can be broadly classified into two distinct categories; direct and indirect discrimination.

1. Direct discrimination

Direct discrimination occurs when a person overtly treats another less favourably because of a particular protected attribute that the person possesses. An example of direct discrimination in respect to dress codes may arise if an employer refuses to hire someone of a certain race because they don’t want them to wear their cultural attire to work. Another example may be requiring an employee to cover up cultural tattoos.

2. Indirect discrimination

Indirect discrimination occurs when a company rule or policy applies equally to all employees yet has a discriminatory effect on a certain class of people who share a particular protected attribute. For example, if an employer prohibits employees from wearing any form of headwear, then this may constitute indirect discrimination against a religion that requires an adherent to do so.

Tread carefully

Another common example of discrimination is when a dress code specifies different requirements for men and women, such as women must wear skirts and men must wear trousers. Whilst the employer may simply intend for their employees to look professional, the effect of such a code constitutes direct discrimination based on gender.

What if there is a valid reason for discriminating?

An exception to dress code discrimination may only apply in circumstances where an employer can assert health and safety justifications. It’s lawful for an employer to implement dress requirements which may be of a discriminatory nature if it’s necessary to prevent hazards in the workplace. For example, an employer may wish to prohibit loose clothing if there’s a danger that such clothing may get caught in machinery, or an employer may require employees to be clean-shaven and have their hair tied away from their face if they are handling food.

What does this mean for employers?

Employers should always ensure that dress codes are reasonable and if necessary, can be justified on the assertion of health and safety measures that are appropriate to a particular industry and the nature of the role in which the employee works. Consideration should always be given to dress code requirements to mitigate any discrimination risks.

How can Citation HR help?

When was the last time your company reviewed it’s dress code policy? With Citation HR Software, you can easily create, change and edit all workplace policies, and if you don’t know where to start, we have hundreds of templates to help get the ball rolling! If you’re worried about your compliance on this issue, we’d like to offer you a free consultation with our HR experts. Organise your free consultation here.