Public Sector Dress Codes and the Constitution

One of my colleagues, Allison Moore, wrote a great article about neutral messaging policies in the private sector, and it has proved to be prescient. The EEOC just filed a complaint against an employer for its treatment of employees who did not want to wear LGBTQ aprons to work due to their religious beliefs.

This topic is even more complicated in the public sector due to constitutional protections for first amendment freedoms such as speech, association, and religion. Not all protections are created equal in the workplace. As you probably know, speech has a number of restrictions in the workplace, and it can be controlled when it is too disruptive for operations. Association does not have the same amount of court decisions, and typically involves issues where employees want to join together, be it in matrimony or as an unrecognized union or another group. The courts have ruled in employees’ favor when this is the case. Religion tends to be the trickiest for the public sector manager. It is a double-edged sword: freedom means the public agency cannot interfere in either supporting or opposing a religion.

As Ms. Moore’s article points out, the easiest way to handle this issue is through a neutral messaging policy. The question is whether this will run afoul of any constitutional protections.

Because speech can be controlled if it is disruptive to operations, public sector employers, generally speaking, may have a neutral dress code requiring clothing and jewelry in the workplace to be insignia free – to a point, as you will see below. Many public sector employees have uniforms, and there can be fairly strict requirements concerning how the uniform is worn while on duty. When off duty, say at a public forum, such as city council meetings, employees acting as citizens may wear what they choose. Those policies about conduct unbecoming while off duty are something to consider scrapping – they may create legal havoc for a public sector employer.

There may be a novel argument that wearing a message on clothing in the workplace – such as black lives matter or blue lives matter – is part of being in a group, and that is protected under freedom of association. However, such dress will likely be regarded as speech by the courts, and the workplace limitations will apply.

Religion is where the complications arise. Because the public sector employer can neither support nor interfere with employees practicing a religion, employers need to be mindful of prohibiting religious clothing or jewelry at work. If a Muslim police officer wants to wear a headscarf and it does not interfere with carrying out official duties or otherwise confuse the public, courts may allow it. Similarly, a library employee wearing a cross on a necklace at work may be allowed to wear it.

Suppose the religious dress interferes with the job duties. In that case, the public sector employer has the added requirement of following Title VII of the Civil Right Act as amended and determining whether allowing it is an unreasonable accommodation. A religious accommodation is unreasonable when it would be more than a de minimus cost to the employer. A review of court cases indicates that employee morale is less than a de minimus cost and should not be used as a defense. Instead, it must show that there is a cost in dollars or to the effective operation of the agency or department.

Now may be a good time to review your dress code. Remember, if you have any questions about it – we can help.