A cocktail server in Maryland will get her day in court to challenge a dress code that required her to wear high heels. She suffers from plantar faciitis (ugh, same) and brought a claim under the Americans with Disability Act (ADA) that her workplace failed to accommodate her need to wear supportive shoes . She first requested an accommodation from MGM National Harbor in 2017, which was denied. In 2019, she provided a doctor’s note and the hotel granted the accommodation to wear flat heeled shoes. From 2019-2021, the employee wore “Sketchers-style black shoes” but MGM claimed that was contrary to the dress policy and the accommodation it granted. By January 2022, MGM National Harbor issued a memo banning: “Ballerinas, Birkenstocks, bedroom slippers, wedge heels, flip flops, sling backs, crocs, any slipper style, sneakers, tennis shoes or shoes with excessive strapping or ornamentation.” The employee continued to wear her comfy shoes, even providing a note from her doctor supporting her. She was disciplined for her continuing violations and fired in May of 2022.
This case is based on an ADA claim (a good one it seems) but could apply to gender as well, assuming MGM is not requiring men to wear high heels. Dress codes can be a sticky wicket for discrimination issues. Appearance-based policies must be enforced in a non-discriminatory manner or be based on a bona fide occupational qualification, like safety.
What to do if you just want your employees to look a certain way and do not intend to discriminate with your dress code? Like the nuns used to say, the road to hell is paved with good intentions. Make sure your policy does not have a disparate impact on a protected class and can be applied equally. As a general rule, the more details, the more problems. The trend towards more relaxed dress codes has grown, with many major employers adopting more modern standards, and some abandoning gendered dress codes altogether.
We can help. If you have a dress code you would like reviewed, contact us. If you have appearance issues to address, we can help you there too. Effective polices work best when tailored to your individual workplace and needs.