Discretionary Dress Code Enforcement Leads To Litigation

A restaurant group terminated two managers at its Ouzo Bay restaurant in Baltimore after the restaurant allegedly denied service to a black woman and her nine-year-old son.

The managers allegedly told the woman repeatedly that she and her son could not eat there because the boy's sneakers, gym shorts, and Air Jordan t-shirt violated the restaurant's dress code. The managers said that the dress code prohibited "athletic wear".

However, a video recording showed that a Caucasian boy wearing a similar outfit was allowed to eat at the restaurant.

The restaurant group terminated the managers after an internal investigation. It apologized for the "incredibly disturbing incident" and stated that it will begin exempting children under 12 from its dress code at all of its restaurants.

The Baltimore-based restaurant group operates 19 other restaurants in Florida, Maryland, Texas, and the District of Columbia.

Later, in September 2020, the organization faced criticism for its dress code at another restaurant. That dress code banned excessively baggy clothing and sunglasses after dark and allowed managers to exercise their discretion in enforcing the policy. Some claimed the policy discriminated against black and Latino diners. "Restaurant Fires Two Managers For Barring Black Child Over Clothing" news9.com (Jun. 24, 2020).

Commentary and Checklist

If your family has a dress code or grooming policy, you must enforce it uniformly. Do not allow managerial staff to enforce the dress code "at their discretion."

Here are some additional tips to help avoid discriminating against staff based on their appearance:

·      Offer employment opportunities and benefits equally to all qualified individuals based on merit, not on appearance.

·      Educate managers to avoid making disparaging remarks about the appearance of staff members, and to report any such comments they overhear through the appropriate harassment reporting channels.

·      Do not enforce rules or standards of appearance at a different level for one group of staff over another.

·      Never ask a staff member to change his or her appearance unless a legitimate, fair, and objective business reason exists.

·      Determine if the staff member's appearance or clothing is related to a disability, culture, or sincerely-held religious belief and, if it is, make all reasonable accommodations for the staff member.

·      Avoid making hasty employment decisions based on appearance without considering all protected classes and consulting with your attorney.

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