Delaware Employment Law Blog

Delaware's Kent County Superior Court has issued a new dress code (pdf) for litigants and observers.  The dress code provides that "appropriate dress" that is "consistent with the seriousness and dignity of the judicial process" will be required to gain access to the courthouse. The dress code goes on to say that attire must be "constructed and worn in such a manner that it is not unduly revealing or offensive." 

The dress code goes on to identify certain types of clothing that are prohibited for court appearances, including:

• Clothing that depicts swear words, violence, drugs, or alcohol use;
• Muscle shirts or tank tops
• Halters or bare midriffs
• Mini Skirts (no more than 4" above the knee when standing)
• Hair curlers, hats, or head coverings (except those worn for religious purposes)

The Superior Court dress code seems to me to be, well, pretty easy to satisfy. Really, are we asking too much that a litigant take off his hat when he comes to court?  I'm all for casual and all for comfort; but there's a proper place and time. 

Apparently, though, requiring a party to remove his or her hair curlers prior to taking an oath of honesty is too much for some.  U.S.A. Today, no less, has picked up the story in a piece called, Judges crack down on inappropriate clothes in court.  According to the story, some worry that the dress code will result in unequal access to the courts.

Hogwash.

If anything, the dress code improves equal treatment in the justice system.  If a litigant does not have the foresight to wear something other than a t-shirt bearing a marijuana leaf to his court hearing, then the dress code actually helps him and ensures that he doesn't act contrary to his best interest.

I have my own opinions (and lots of them) on dress codes and attire policies--I've linked to a few of them below.  Our friend, John Phillips, takes a similar approach to the issue and has inked quite a few outstanding posts on the dress-code topic, as well.

Objection! Opposing Counsel Has Violated the Basic Rules of Fashion!

Firm Defines "Business Casual" (a/k/a the "Nobody Wants to See Your Chest Hair" Memo)

What Happens When You Fail to Follow Workplace Dress Codes in BigLaw

Workplace Dress Code Is Cut Short. Really, really short.

Facial Hair: Style Statement of the Unemployed

Honey, Does This Outfit Make Me Look Unethical?

NYT Says the Man-Short Is Headed to an Office Near You

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Employers have long hated the summer months for the dress-code disasters that inevitably accompany the change in seasons. The inability of people to make good fashion choices for their workplace attire has led to countless headaches for human resource professionals and managers everywhere and, in many cases, has been cited as a reason to not make the switch to a casual dress code. 

Just ask educators. Uniforms in public schools are more popular than ever. When everyone wears the same thing, social status becomes much harder to identify.

Harvard apparently has its own take on the “school uniform” idea.  It’s set to release it’s own clothing line, called “Harvard Yard.”  And, according to Fashionista, the line isn't cheap—we’ll have to wait and see how a $220 pair of pants impacts the wearer’s perceived social status.

See other posts on dress codes:

Objection! Opposing Counsel Has Violated the Basic Rules of Fashion!

Has Employers' Belt-Tightening Led to Well-Heeled Workforce?

Firm Defines "Business Casual" (a/k/a the "Nobody Wants to See Your Chest Hair" Memo)

What Not to Wear to Work: More Style Rules for the Modern Worker

What Happens When You Fail to Follow Workplace Dress Codes in BigLaw

Workplace Dress Code Is Cut Short. Really, really short.

Facial Hair: Style Statement of the Unemployed

Honey, Does This Outfit Make Me Look Unethical?

NYT Says the Man-Short Is Headed to an Office Near You

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

A lawyer who cares a lot about shoes. That description applies to me, as I just love, love, love shoes of the high-heeled variety, in particular. There’s another lawyer feels passionately about shoes, but in a very different way. The Palm Beach Post broke the story of a Florida lawyer who filed a motion to compel his opposing counsel to wear better-looking shoes.  Nope, I am not kidding. 

In short, the lawyer felt that, by wearing old, ugly shoes to court, his opponent was unfairly garnering the sympathy of the jury.  It’s a high-drama story, far more so than even this description implies, if you’re interested.  But I just love the fact that the attorney actually noticed his opposing counsel’s shoes in the first place!  Nevertheless that the guy had the guts to file a motion about the darned things!   This story reaffirms my admiration of the justice system and sense of awe of lawyers who take the details very, very seriously. 

NPR aired a story claiming that employees are paying more attention to their wardrobe as a result of layoffs and belt-tightening.  Has workers' attire become more conservative and just better looking lately?  And, if so, is the appearance improvement possibly a tactic being used to prevent termination?

If this idea is based in reality, doesn't it imply that employees believe that dressing better is just plain better?  So why do they settle for less-than-better unless they think their jobs are on the hook?  Maybe the ones who don't "dress better" (as in, "improved"), should be rewarded because they (a) always strive to "dress better" (i.e., look their best); or (b) have enough confidence in themselves, their fashion sense, and their employer.

There may be something to it.

See recent posts relating to workplace attire:

Firm Defines "Business Casual" (a/k/a the "Nobody Wants to See Your Chest Hair" Memo)

What Not to Wear to Work: More Style Rules for the Modern Worker

What Happens When You Fail to Follow Workplace Dress Codes in BigLaw

 

Women's attire has been a hot topic here this week.  (See Pantsuit I and Pantsuit II). And the subject of dress codes is only getting started--it is, after all, the start of the summer.  One law firm has taken the bull by the horns.  Curtis Mallet issued a memo to associates providing some very specific instructions on what the firm considers to be appropriate summer attire. According to law-firm-tabloid blog, Above the Law, the memo was not well received by associates. 

Oh, boo hiss to them. 

The memo is hilarious.  It's to the point and it leaves little room for doubt.  I think it's a model for excellence in the dress code category!!  Visit Above the Law for the full memo but here's a few highlights in the meantime:

By all means resist the urge to acquaint us with your chest hair. If you think it necessary to impress the ladies with your efforts at the gym over the winter, think again - we are not a particularly good demographic for that.

For the ladies, the situation is a bit more complicated, pitfalls abound and I need to be circumspect. In brief, save it for the clubs or the beach.

So, to the haters out there, I say this:  The memo is right, we don't want to see your chest hair!

Other, related posts:

What Not to Wear to Work: More Style Rules for the Modern Worker

What Happens When You Fail to Follow Workplace Dress Codes in BigLaw

Whether women attorneys are guilty of poor fashion choices when it comes to courtroom attire was the topic of Part I of this post.  (See Are Women Attorneys Being Stricken by a Pantsuit Pandemic).  In this part, I propose what I believe is the "solution" to this problem.

What can and should be done about these fashion crimes?

There has been some suggestion that law schools should teach students about the dos and don'ts of fashion for their future career endeavors.  I have to giggle a little when I hear that idea.  Academia is going to be responsible for communicating fashion tips to the next generation?  Oh, come on now, I don't think there can be too many people who actually believe that this is a viable proposition. Even if schools were to outsource the subject and hire image consultants to teach a 1-credit class called "Appropriate Courtroom Attire," standards will still vary by some degree based on geography and the courts in which you practice.

At the risk of being laughed out of town for my inflated sense of positivity, I'll offer my suggestion to this serious problem.  Each state's bar association should draft a set of "Attire Guidelines," which would then be incorporated into the bar-admission process. 

In Delaware, bar candidates who have successfully based the bar exam cannot be sworn in until they complete a set of "Clerkship Requirements."  The requirements are what the bar association considers to be the absolute fundamentals of practicing in our State and the idea is that, after completing the requirements, no attorney will ever be totally lost when it comes to the operations of our court systems.  Candidates have to attend various types of hearings in the different state courts and participate in a variety of litigation and transactional activities.  For example, one of the requirements is that the candidate review the articles of incorporation for a Delaware-incorporated business.  Similarly, candidates could be required to attest that they've reviewed the "Attire Guidelines." 

I don't think it's impossible, really. The toughest part would likely be reaching consensus on the guidelines.  And even that can't be too difficult.  I mean, we're not trying to craft a treatise on the issue, just a set of the most basic rules for dressing as a professional.  For example, pick a hemline length and stick with it. Address the color issue--are red suits ok for women to wear to court or are all attorneys, regardless of gender, expected to wear dark colors when appearing before the court?  And are open-toe shoes permissible?  (No, no, no!  I implore you!)  I'd venture that consensus can be reached on these basic tenets. 

Once there is a set of rules in place, attorneys would have no excuse that they "didn't know any better."  Guidelines, standards, and rules are good things.  We need structure.  We're lawyers--it's our nature to come up with creative reasons why the standards don't apply to us.  If the standards are published to all, though, the leeway that comes with an unwritten rule disappears.  I think it could work. Really.

The dress-code issue took front and center during a panel discussion of federal court judges from the Seventh Circuit. The judges raised the issue of what one jurist described as “the Ally McBeal look,” complaining that female attorneys dress inappropriately when appearing in court. The comment and ensuing discussion has sparked a debate across the blogosphere.

For me, the comment raises multiple questions. First, do women really dress as badly as the panelists described? Second, if women are making such horrible fashion choices, why are they doing so--ignorance or disregard?  Third, assuming the pantsuit pandemic is not limited to the Seventh Circuit, what's to be done about it? 

I share my thoughts to the first two questions below and will share my solution to the problem in a subsequent post.  But, before turning to the questions, but feel compelled to first disclose where I stand on the fashion spectrum.  I fall somewhere on the "fashion forward" side of the line.  For example, my electric blue patent leather pumps usually get an eyebrow raise or two, as do my leopard-print calf-hair Lambertson Truex stilettos. I am a self-confessed shoe junkie.

Shoes aside, I definitely fall on the conservative side of the line, as well.  I guarantee that no judge would ever comment that my hemline is inappropriately high--in or out of court.  Never ever.  So I come from a position that women can dress in a way that reflects their individuality and that is perfectly current without compromising their attire-integrity.

 

 

 

 

Continue reading "Are Women Attorneys Being Stricken by a Pantsuit Pandemic?" »

Men are going unshaven as a sign of rebellion against Corporate America, or The Man, or the employer that just laid them off.  Well, so we hear, anyway.  And fashion houses are designing women's suits that include shorts so short that would make the women in the Nair* commercials blush.  Even I have contributed to the recent workplace dress code rebellion by suggesting that corporate-suit-types may prefer pink iPod cufflinks to the traditional mainstays. 

And this type of style confidence is fantastic.  Unless, of course, your choices put your superiors on guard--instead of admiring your style as avant-gard.  Just ask Tracey Batt.  

From the ABA Journal, an article titled, Ex BigLaw Associate: I Was Arrested By Law Firm Fashion Police.  According to the article's author, Martha Neil, Batt was a 5th-year associate at a BigLaw** firm in NYC when she scared her superiors so badly with her fashion choices that they actually retained a fashion consultant to take her shopping and help her with a total makeover.

Batt described the experience as "positively mortifying." 

It must have been--she's left the world of BigLaw altogether and now runs a "small nonprofit legal services organization" from her home.

So, for those of you considering somewhat outrageous jewelry or other fashion choice, please, be warned.  Keep an eye out for the fashion police, they could be coming for you next!

 

*Nair's jingle, for those who may not recall, begins, "Who wears short shorts?"  Sure, you remember it! 

**"BigLaw" is code for "multi-office Golaith law practice where associates are relegated to document production for the first 8 years of their careers, while earning hefty six figures for their suffering."

Workplace attire is a favorite topic of mine.  When the New York Times announced that the "man-short" suit was going to sweep corporate offices across the country, I had my doubts.  Recently, the Wall Street Journal asked whether unshaven faces would be the next big thing as men laid off from their fast-track jobs rebelled against the system by, well, by dressing like men without jobs.  

For those who find this type of fashion-of-the-absurd-style commentary as entertaining as I do, I'm glad to bring another soon-to-be fashion classic to your attention.  Corporette, a fairly recent and worthy edition to the blogosphere, spotted this first.* 

 

This Bebe twill suit is available as separates--a jacket with piping and pleats, a bustier vest in the same style, wide-leg (and super-long) pants, and a reasonably conservative skirt.  But what really takes the day is not the slightly off-beat twill suit.  There's a third option.  If neither the pants nor the skirt does it for you, try the super-short shorts.  How short is short, you ask?  Try a 2.25 inch inseam.  Wowser. 

*In case you don't already have Corporette in your feed reader, now's the time to add it.  The blog is described as a "fashion and lifestyle blog for women lawyers, bankers, MBAs, consultants, and otherwise overachieving chicks who work in conservative offices and need to look professional, but want to be fashionable."  Great stuff.

Male workers who are laid off are letting their hair down--in a rhetorical sense, anyway. Christina Binkley of WSJ.com's Life and Style  section, claims this to be true.  In her recent post, Growth Area: Beards on Laid-Off Executives, Binkley says that men are donning beards as a sort of act of rebellion, a way of breaking ties with their former corporate selves.

Sure, the fashion move may be liberating, I guess, but does it serve them well when trying to return to the workforce?  There's a good bit of opinion on this.  John Phillips, at The Word on Employment Law is not a supporter of the facial-hair movement, it we want to call it that.  Neither is Kelly Lynn Anders, associate dean at the Washburn University School and author of The Organized Lawyer.  Anders, who is quoted in the WSJ post, advises students to present themselves in their best light, which, to her, means clean-shaven.  

My thoughts?  Well, I suppose I think that the idea just isn't that important.  Some men look better with a beard and, for them, a beard doesn't seem as much like a fashion statement as it does common sense.  For those who are trying the style on for size while waiting for the next employment opportunity, I say, sure, why not?  I like to wear flip-flops at the beach but Lord knows I'd be caught dead before I wore them to the office or to a client meeting, nevertheless to a job interview.  Everyone has the inclination to go casual when the time is right--the question is whether one man's definition of "casual" is another man's "sloppy." 

For those of you who have toyed with the idea of bearding up for the winter, I say "Cheers."  If it looks good, all the better.  If it looks bad, I'd be willing to bet that you hear about it--people really aren't very shy when it comes to their thoughts on another's changed appearance.  And for those of you who may be unemployed and, for that reason, are "brazen" enough to give facial hair another look, so be it.  Whether you shave for a job interview depends, I'd say, on how badly you want the job.  If you want it badly enough, I would think you wouldn't take the risk that your new "fashion statement" could mean the difference between getting hired and getting a rejection letter.

For the skeptics, just think, a beard on any day is better than the man-short anytime.

The blogroll at the Delaware Employment Law Blog currently houses approximately 150 links to blogs in a variety of topic areas.  I started the links page, which you can find under the "Resources" tab at the top of the page, as a way to store the crazy number of feeds I had collected.  Well, in the roughly 9 months since then, I have managed to accumulate nearly ten times the original amount!  Yes, I've collected roughly 1,500 blog links.  I've been checking the validity of the links and categorizing them in a way that will can understood by "normal people."  While that project is being finished, though, I thought it only due to recognize some of my favorites on the list.  So, with that being said, here are a few posts about work that I hereby deem worthy of a read.

John Phillips at The Word on Employment Law posted on the normalcy of visible tattoos in the workplace. 

Jon Hyman at the Ohio Employment Law Blog has a comprehensive post on the ADA Amendments Act, which is bound to be a hot topic for many months to come.  Not to be accused of showing favorites, but Jon also has an easy-to-understand piece on everyone's favorite intermittent leave under the FMLA and, specifically, the recertification requirements that employers can impose.

The First Amendment Prof Blog directs our attention to a case involving school teachers who've filed constitutional claims alleging free speech violations over a school rule banning political pins worn by employees.

At The New Age blog at the N.Y. Times is a thought-provoking post on the language choices we make called, How Not to Offend the Aging.  Take the opportunity for a refresher in what's ok to say.

I have to give a major shout out to Ask a Manager, who advises job applicants to stop dressing down for interviews at nonprofits.  Amen.  Although there has been a lot of advice in the opposite direction, I stand firm in my belief that it is better to be overdressed than underdressed.  Worst case, you look like an over-eager job candidate, which, in my world, is an excellent quality.  I want candidates to be eager, and passionate, and enthusiastic, about the potential of working at our organization.

Work rules for dress code are not out of fashion just because the season has changed.  Instead, the topic of "What Not to Wear to Work" is as trendy as ever.  So, for those of you charged with the task of enforcing dress codes and monitoring hem lines, here's a bit of reassurance that you are not alone.   

Four security guards at NYC's Grand Central Station were disciplined when their "sloppy-looking" dreadlocks did not fit under the uniform-standard caps.  Three of the four were suspended for their refusal to comply with their employer's demand that they come to work "with their hair properly cut."  The fourth shaved his beard after being told that failure to do so would result in his termination. 

The EEOC filed suit on behalf of the public safety officers against the Grand Central Partnership alleging religious discrimination--the employees are Rastafarians.  The matter appears to have been resolved, though.  The partnership recently agreed to provide custom-made hats to each of the officers so they could tuck in their dreadlocks.

We’ve talked a lot about dress codes this summer. It’s a topic that just doesn’t go away. Beats me whether the sustained interest in the dress-code issue is due to the super-casual approach of the Gen Y employees populating the workplace at a rapid pace, or to the connection between rising temperatures and rising skirt hems, or maybe to our hyper-sensitivity to attire that the legal profession just can’t seem to let go. The obsession could be a result of any combination of these factors.

And the obsession has made for interesting blogging. We’ve talked about Gen Y’s insistence on meeting the arbitrary standards of fashion as they see it, as opposed to the standard of their particular workplaces. We’ve talked about the current status of the lawyer’s dress-code pendulum. We’ve addressed the role of gender when it comes to setting dress-code policies. And we’ve even managed to tackle some specifics of what not to wear to work—including the invasion of the man-short, a personal favorite.

As hard as this might be to believe—I’ve actually happened upon an even more interesting real-life story about dress codes! And it even involves a lawyer, which definitely gets me bonus points in the “tie-it-all-together” category. Judge for yourself. (Via the Legal Profession Blog).

The Arizona attorney at the center of the story was charged by the State’s Bar Counsel with unethical conduct. The lawyer had to answer to a disciplinary committee and defend the misconduct charges filed by the Bar Counsel. The atrocious conduct at issue? The disciplinary charge alleged that the attorney had employed tactics that had no substantial purpose other than delay and embarrassment. He was also alleged to have failed to abstain from “all offensive personality.”

And here’s the conduct that led to these charges. The lawyer, who was admitted to the Arizona State bar in 1999, and who practices criminal defense, went to a police station to informally interview two police officers involved in a vehicular-manslaughter case. When he arrived at the station, he was wearing a t-shirt that had “Let the f***ing” printed across the front. [Asterisks not included].  He wore the t-shirt to communicate his opinion that his client was at a disadvantage in the judicial system by virtue of the police conduct.” Neither officer commented on the attorney’s fashion choice.

A prosecutor was also present during the visit. She testified that she was not offended or embarrassed by the shirt. She believed that he’d donned the shirt in an attempt to be funny; although she did think that it was a bit inappropriate. Her supervisor, on the other hand, did not find humor in the shirt or with the attorney wearing it. He ordered security officers to take pictures of the shirt.

And, perhaps to ensure that he wouldn’t be invited to the Maricopa County P.D.’s holiday party, he told another prosecutor that her boss was an “unethical piece of trash.” He made the comment in response to a request for a transcript. He provided the requesting prosecutor the transcript without delay or inconvenience.

Then, in an exercise of the holiday, gift-giving spirit, the attorney later sent a note to the Chief Attorney in the Vehicular Crimes Bureau, enclosing a small gift. The note read, “Kristen, your waiting room magazines required a better selection.” Enclosed was a six-month gift subscription to Modern Drunkard Magazine. The Chief received monthly issues of the magazine as promised but did not put them in the waiting room. She felt it may be inappropriate, given she was the head of the office that prosecuted drunk-driving cases. She did appreciate the humor, though, and was not embarrassed or otherwise imposed upon as a result of the “gift.”

If you are confused as to how these three incidents could rise to the level of sanctionable conduct, you are in good company. The hearing officer recommended that the charges be dismissed in their entirety—the first time in his 25-year tenure that he had made such a recommendation. Maybe the conduct was inappropriate or in poor taste. But maybe not—given the evidence that the intended recipients of his less-than-subtle messages were not offended or embarrassed. Either way, the hearing officer wrote, “on the continuum of inappropriate to unprofessional to unethical,” the attorney’s conduct could be described, at the worst, as inappropriate.

For all of the dress-code talk lately, I'd guess there's no dress code quite like the one in Beijing.  In preparing for the Olympics, Beijingers have been instructed to put on their Sunday best.  And for those HR Specialists who thought that specificity in dress codes is just plain impossible, there are some Beijing government officials who would disagree.

Here are some of the examples of the attire-centric advice contained in the 4 million booklets that have been distributed:

1. Do not wear too many colors (generally not more than three);

2. Avoid white socks with black shoes;

3. Pajamas and slippers should not be worn in public.

[Source: AP at MSNBC,  Beijingers Get Dress Code Advice for the Olympics]

There has been no mention, though, of a prohibition against those man-shorts that John Phillips and I have both discussed.  What can we say?  Fashion is tricky--for employers and for government of the largest country in Asia.

 

Prior Dress-Code Posts:

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

What Not to Wear to Work: More Style Rules for the Modern Worker

Coworkers beware.  Your male colleagues may be showing a bit more skin this summer.  According to the New York Times, it's just a matter of time before your male colleagues start showing up to work in a suit jacket, shirt and tie, and . . . shorts.  Yes, that's correct.  Shorts.  

Interestingly enough, the paper said the same thing this time last year about the line of suits that had been produced for women and that featured knee-length shorts.  I recall there being an actual debate about whether the author of the article lived on the same planet as the rest of us.  There was also a mild interest in the idea based on the heat factor.  Indeed, there was a little flurry of excitement over what seemed to be a new line in the sand when it came to business attire. 

In our office of roughly 200 people, one woman was nervy enough to give it a try.  And she looked great.  She's also a size 0 and stands 5' 10".  She looks great in a parka with mittens and snow boots.  It's virtually impossible for her to not look great. 

So, pardon me NYT, I mean no disrespect, but I have my doubts about the level of interest most men will have in the shorts-suit concept.  If for no other reason but cost.  Gen Y are the potential consumers for this latest fashion development.  And I'd be willing to bet that if they have to drop a chunk of change on a suit for a new job, it'll be for a suit they'll actually be able to wear.  It's difficult to imagine the young man who would forgo the navy blue standard in lieu of a khaki-colored pair of shorts and matching jacket.  Let's face it--he'd rather spend his money on something else, anything else, other than a suit in the first place. 

Of course, if a male colleague showed up to work wearing the shorts-suit styled like the gentleman's in the picture, above, he may be laughed out of the office, black dress shoes, white ankle socks, and all, before he had a chance to explain that the NYT had given his outfit the official thumbs up. 

Workplace attire is a topic that just doesn't seem to go away. Dress codes and style rules for the modern worker get continuous coverage in the media.  Apparently, fashion is not just for the fashion columns anymore.  Fashion is a part of the business world, like it or not.  This modern-day fashion challenge is especially prevalent with Gen Y employees. 

Gen Y is known for its casual approach to work attire.  A generation that grew up wearing flip-flops and baring their belly rings can be particularly defiant of a conservative dress code.  The Millenial mantra for fashion may be coined, "Comfort Is King."  But that position often conflicts with the expectations of management. 

It can also prevent Gen Y job candidates from landing the job in the first place.  Candidates who come to an interview dressed in clothing that stands out as casual, trendy, or "young" will have a more difficult time making the cut.  And they may never know why. 

So what's a 21st-century fashion savvy job seeker to do? Generally speaking, don't take chances.  The interview is not the place to demonstrate your appreciation for cutting-edge couture.

And what about the rules of engagement for employers?  Although some will surely disagree, my position is to err on the side of caution.  If a potential employee comes to the interview with hot pink fingernails and Cyndi Lauper-style eye shadow, don't assume that she'll magically know better by the time she arrives for orientation, or that she'll "get the message" once she start work and sees that her colleagues are all dressed in more conservative garb. They won't.

Gen Y is known for its fantastic sense of entitlement and are unlikely to be particularly understanding or appreciative of the message that their clothing choices are unsatisfactory.  So, if you hire a candidate who makes his first impression by wearing a vintage Van Halen t-shirt under an Armani suit blazer, just be aware that you'll either have to accept his particular style choices or be prepared to have the uncomfortable "dress-code discussion" that will inevitably be required.

Accenture has come up with a great way to communicate its dress code and, with any luck, to prevent that dreaded conversation from ever being necessary in the first place.

Related Posts on Dress Codes:

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Everyone's talking about dress codes.  Pantyhose or no pantyhose?  Flip-flops causing mutiny in the workplace. What not to wear is not just a TV show, it's regular water cooler talk these days.  A new case filed by the EEOC shows a much more serious side of the dress-code debate--how dress codes can turn into discrimination.

The Equal Employment Opportunity Commission has sued Texas business, Champion National Security Firm, for religious discrimination after the company did not hire a Sikh who refused to shave his beard and take off his turban.

The claimant, Sukhdev Singh Brar, applied for a position as a security officer, was called for an interview and then got the job.  Well, almost.  Brar alleges that a company representative told him, "'I'm going to hire you, but you have to shave and take off your turban."  Brar says he told the interviewer that her request was against federal law and his religion. 

But she was not dissuaded.  Even after he told her that it was against his religion to cut his hair and remove his turban, she told him that this was the company's policy and the policy wasn't going to change.  "I cannot cut my hair. I cannot take off my turban," he said.

Title VII prohibits employers from discriminating against employees and applicants because of their religion when making decisions about hiring, firing, and other terms and conditions of employment.

The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee's religious beliefs.

The standard for religious accommodations is "undue hardship."  But what exactly is  an undue hardship? According to the EEOC, "an employer can claim undue hardship when accommodating an employee's religious practices if allowing such practices requires more than ordinary administrative costs."  The EEOC goes on to identify some examples of a religious accommodation:

Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.

The undue-hardship standard is substantially easier to meet as compared to the standard used in disabilities accommodations. But, even under a lenient standard, the employer must still have a reason for refusing to accommodate a religious request.  And just saying, "Well, that's our policy" is not going to cut it.  I'd be interested to know what the company's defense will be; what will it claim was the hardship?  And the employer may very well have one--it refused to settle (or at least to settle on the terms offered by the EEOC).  Employers stay tuned, the dress-code debate is sure to heat up.

Dress codes prefer males over females.  Ok, maybe not. But it's hard to deny that men who work in jobs that expect traditional, corporate-minded attire, certainly have far fewer choices than women.  And fewer choices can mean fewer mistakes.  Let's face it, a suit is a suit is a suit.  Granted, men can make some pretty bad choices about their tie-shirt combos but it's quite different than selecting accessories like earrings, necklaces, scarves, shoes, and the list goes on.

I recently read a post by Laurie Ruetimann at Team Building Is for Suckers, which talked about an article in The WSJ  on the issue of women's choice for work wear and the effect it really has on their success.  Her post raised some interesting questions about whether there is a double standard when it comes to fashion choices by men and women. 

Among practicing attorneys, the belief that lawyers should "look like lawyers" remains firmly in place.  Even less conservative attorneys that I know would never consider going to see a client or giving a seminar in anything other than the traditional blue or black suit.  Brown doesn't cut it, for those of you who were wondering.

Personally, I have many times struggled with "what not to wear" as the show's title goes.  I, for one, take my fashion choices pretty seriously.  Ok, maybe even too seriously. But, knowing that I tend to be far more fashion forward than fashion conservative, I try to be especially aware that I don't cross the line--wherever that may be. 

The most grounding experience I've ever had regarding professional attire occurred before I ever was a professional.  The "memorable" and eye-opening encounter occurred during law school when I participated in a intra-school "moot court" competition (think debate team for lawyers in training).  My female teammate and I burned through our competition during the early rounds and suddenly found ourselves, unexpectedly, in the semi-finals. 

Our opponents, two men, were friends of mine.  They were also very good oralists and were taking the competition very seriously. The panel of judges were actually "real" judges, who volunteered their Saturday afternoon to attend the event, fire questions during our arguments, critique the speakers, and, in the end, declare the winners.  Our panel included two male and one female state court judges.  The men ranked significantly higher than the woman in the judicial hierarchy.

Our opponents went first and, without a doubt, were outstanding.  Then, it was our turn.  We gave an equally outstanding performance.  I was thrilled.  My family had come to watch and I was so proud to have made what I knew was a finalist-worthy argument.  I was excited to hear the critique of the judges but, honestly, did not particularly care whether we advanced or not. 

The satisfaction of performing at my best was satisfaction enough.

The judges gave our adversaries their critiques first.  As is the norm, they included both good and bad points.  Hearing the comments, I knew we were going to be declared the winners--all of the points where they had done poorly, we had performed at a top level. 

Finally, it was our turn and my teammate and I walked to the podium to hear from the judges. There was a true audience in attendance, too.  The family and friends of each of the four participants, as well as participants who had been knocked out in earlier rounds, and the hosts and volunteers running the event were seated in the auditorium style seats behind us.  I was beaming with pride.

The male judges spoke first. Each of their points were right on target.  They'd caught us when we'd struggled for answers or tried to evade their questions.  They commented on our demeanors and our use of eye contact. 

The female judge was the last to speak.  She began with my partner and then turned her comments to me.  She made a few, half-hearted introductory points, like, "Overall, your presentation was very competent."  Then the niceties were over.  She glared at me, looking over the rim of her eyeglasses, which sat perched at the end of her nose.  And, without emotion, she announced that we would not be proceeding to the final round. 

Without hesitation, she declared that she had voted for our opponents because I had not worn a skirt. 

A skirt. 

That's right.  I had worn a pants suit to the argument.  For no reason other than, at the time, it was the nicest suit I owned.  The one skirt suit I had was fairly worn and I wanted to make sure that I presented the best appearance possible. 

She explained in an almost angry tone that, if this was the real United States Supreme Court (instead of the mock trial version), would I have really shown up in pants?  She almost shuddered in disgust when she finished the sentence.  

Clearly, she went on, I had not taken this competition seriously.  It was a flagrant act of disrespect for me to make the fashion choice that I had made so flippantly. 

She continued on about the trials that the women before me had been forced to endure so that I could even attend law school today or have any shot at success in my chosen profession. She continued on. 

But, by that point, I was no longer listening.  I was fuming.  It took every ounce of self-control I could muster not to react.  I wanted to cry over the sheer humiliation I felt as she berated me in front of my mother, my father, and an entire room full of strangers.  More than that, though, I wanted to tell her that it was women like her that would force my daughters and granddaughters to continue to fight for true equality in the workplace.  Not the two men who sat beside her--they had been courteous and genuine when they spoke.  It was clear that they believed in each of the participants and felt a kind of true joy to see what would develop into the next generation of lawyers.

It was her, the only woman on the panel, and women like her, that the future generations had to worry about.

And what about now?  Now do I wear a skirt suit or a pants suit when I go before the Court?  I'll be honest and say that it is something I consider each and every time.

Don't know the difference?  Residents of Delaware, Maryland, New Jersey, and Pennsylvania sure do.  "The Shore" refers to the New Jersey Shore and all of the wonderful towns that it includes.  "The Beach," on the other hand, refers to the Maryland and Delaware Beaches, including Ocean City, Maryland (not to be confused with Ocean City, NJ, of course), Rehobeth, and Lewis, Delaware, to name a few. 

Any self-respecting East-Coast native knows that Memorial Day weekend is synonymous with the start of the summer.  And with the summer comes the shore or beach, depending on your current geography. 

And what, you ask, does this have to do with employment law?  Lots, actually.  Just ask the blogosphere.

Dan Schwartz, at the Connecticut Employment Law Blog, for one, can point to three e-law items with strong ties to the beach season.  All three are right on target.  He reminds employers to take a refresher course in vacation and paid-time-off policies.  Because, let's face it, the major highways aren't log jammed on Fridays at 1 p.m. by mere coincidence. 

Dan also points out the need to be aware of the very common summer parties where interns may bring a bit more casual approach.  Hey, let's face it, once August comes around, it's not their problem anymore.  Permanent employees, though, must carry with them the effects of their conduct at the end-of-summer BBQ. 

In fact, the only difference between the pool party or the Margaritaville fiesta and the office holiday party is that one involves, in fact, expects, there to be a lot fewer layers of clothing. 

Just looking at this combination alone, you can derive several potential concerns. 

1. Young summer interns.  Remember, the EEOC is watching over them and watching you in the meantime.
2. Summer parties that start at 8 p.m. instead of the holiday party, which starts at 4 p.m.  No one can leave the office early during the summer workweek (Monday - Thursday) because they need to get enough done not to feel guilty when they take a half day on Fridays.
3. Margaritas, Daiquiris, and other fruity concoctions go down easy all year round but most especially when it's 85 degrees and 89% humidity.

Of course, I love summer as much as the rest of the East Coast summer junkies and, by no means, am I trying to spoil anyone's fun in the sun.  But employers beware.  The cocktail above serves up a legitimate legal liability.

Have a great holiday weekend!

Some recent reports about law firms trying to persuade associates to dress better, and even hiring coaches for them, are a reminder that the pendulum seems to have swung back from the days when even old timers were “dressing down” to try and “connect” with the wealthy young techie entrepreneurs.

I, for one, am pleased to see a move toward more moderate dress.

There has been silliness on both sides of the continuum. Some years ago, the Delaware Supreme Court, in its infinite wisdom, issued an edict that lawyers appearing before it had to wear white shirts. So much for sartorial creativity.

But if I were seeing a lawyer, I’d feel more confident if he or she were wearing a white shirt than jeans or running pants. While I don’t think we need to force associates to pore over “Dress For Success,” I think that dressing up a bit is a step in the right direction, both for the lawyer’s self-image and the clients’ confidence in the attorney. Maybe ties can be optional, especially in the summer, but there’s nothing like a suit or at least a sport jacket to establish a tone of authority (deserved or not).