Dive Brief:
- A Maryland district court judge denied motions for summary judgment and partial summary judgment from MGM National Harbor and a former cocktail server, in a disability accommodation case dealing with footwear (Lopez-Duprey v. MGM National Harbor, LLC).
- The plaintiff filed the lawsuit against the casino and entertainment venue for failing to accommodate her footwear needs and ultimately firing her. Her doctor recommended she wear “good support shoes” instead of the high heels mandated by MGM’s uniform.
- The plaintiff filed her complaint in 2023 under the Americans with Disabilities Act and the Maryland Fair Employment Practices Act. She also alleged retaliation.
Dive Insight:
The plaintiff started working as a cocktail server at MGM National Harbor in 2016. The uniform required workers to wear black heels. She began to submit reasonable accommodation requests in 2017 to wear flat shoes, but was continually denied, according to court documents.
In 2019, MGM sent a request for more information to the server’s doctor, which the doctor obliged. MGM then allegedly granted the accommodation.
Per court documents, the worker wore “Skechers-style black shoes” as a part of her accommodation from July 2019 to December 2021, but MGM said that the plaintiff’s conduct was “contrary to the accommodation granted and in violation of the dress policy.”
In December 2021 or January 2022, MGM National Harbor issued a memo describing appropriate footwear and 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 plaintiff was disciplined for allegedly continuing to violate the dress code. In April 2022, she received medical treatment and a note from her doctor requesting she be allowed to wear the Skechers-style shoes. She was terminated in May 2022, with MGM noting she had “been progressively disciplined for violating the company’s appearance standards,” among other reasons.
The plaintiff has plantar fasciitis, a condition marked by pain and inflammation. She has been outspoken about what she experienced at MGM, and started a petition to change the dress code.
Shoewear and dress codes more generally can be a point of contention in the workplace, be it for cultural or compliance-related reasons.
More than five years ago, Walmart, Target and Goldman Sachs led the charge on changing uniforms; Virgin Atlantic nixed its previously gendered dress code in 2022.
Job search engine Adzuna analyzed 7.6 million job ads posted from 2019 to 2023, finding that 0.08% of ads mentioned a dress code; within that number, about 70% mentioned a “casual” dress code, 30% mentioned a “business casual” dress code, and fewer than 1% of ads mentioned “smart casual” or “smart dress.”
In a nearly decade-old blog post for National Law Review, an attorney said that, generally speaking, U.S. employers can’t require employees to wear heels if that aspect of the dress code only applies to women.
“Dress codes, grooming requirements, or other appearance-based policies must not have a disparate impact on any particular protected class regardless of the employer’s intention,” Emily Perkins wrote, citing Title VII of the Civil Rights Act of 1965. “Such policies are legally permissible so long as they are enforced in a non-discriminatory fashion or if based on a bona fide occupational qualification, such as safety.”
HR Dive reached out to MGM National Harbor for comment and the casino did not respond by the time of publication.
