In the retail and hospitality industries, employers sometimes are searching for that special “look” that can help define them.   Abercrombie and Fitch is certainly one of those types of businesses, and you can think to various hotels, nightclubs or retail stores for other examples.

But is it legal?

That’s the subject of an interesting column in Fisher & Phillip’s Hospitality Update, which notes a recently lawsuit by the EEOC against Abercrombie.  The column’s conclusion? Employers have rights…so long as they don’t come up against the rights of an employee, particularly one with religious beliefs.

[C]ertain “immutable” factors…are off limits because they are protected by federal or state law. These are things such as an applicant’s race, sex, ethnic background or national origin, and religion. …In the area of religion things get a little trickier. Many religions require distinctive garb or appearance and it’s certainly not limited to Muslims. Sikhs, Rastafarians, many Jewish groups, and some Pentecostal Christian groups follow similar dress or appearance guidelines. An employer’s obligation is to never give an automatic “no” to a religious-based request, even if the request violates longstanding company policy.

Instead, the employer is obligated to engage in a reasonable accommodation analysis.  In this analysis — in contrast to the one under the ADA — the employer might be obligated to provide some change to a policy to allow for this.

The subject of dress codes and looks has gone through many changes over the last decade or so, as we’ve gone to a more casual dress in many businesses nationwide.  (Indeed, a good recap is provided by the Proactive Employer blog here.)

Suffice to say that employers who are strictly enforcing a “look” or dress code, should consider the implications of doing so and the costs that may be involved.  It’s not as easy as it seems.