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Does Your Dress Code Measure Up?

by Scott Holt and Margaret DiBianca

For some employees, the weekend starts early, say Wednesday or Thursday, with shorts, jeans, T-shirts, tank tops, and other very casual attire in the office. Revealing clothes, in turn, disclose body piercings and tattoos — things you may prefer to keep covered up.

If your employees are coming to the office looking like they’re on the way to the beach or an Ozzfest concert, now is a good time to review your dress code policy for effectiveness and ensure that any actions you take are in compliance with your employee handbook.

Audio Conference: Dress Codes, Tattoos, and Piercings: How HR Can and Can’t Control Employee Choices

Look it up! What does your handbook say?
The first step you should take is to pull out your handbook and have a look. What the handbook says will dictate your next step. If your dress code is too broad or even nonexistent, now’s the time for an update. If your policy is effective and complies with the legal requirements discussed below, you should abide by its terms when disciplining employees for dress code violations.

Also, it may be a good idea to recirculate the policy to your employees so everyone knows what is and isn’t appropriate. Hint: If you needed to review the handbook to determine what’s in the dress code policy, your employees probably need to be reminded, too.

Don’t play favorites — it’s called discrimination
Discrimination laws set the outer limits for lawful dress code policies. The laws, however, aren’t as restrictive as most employers think. You have the right to determine your organization’s appropriate workplace attire.

Dress-code-based sex discrimination claims generally aren’t successful. Both the Equal Employment Opportunity Commission (EEOC) and the courts have held that to create a professional atmosphere, employers may establish different dress codes for men and women without violating the discrimination laws. That makes sense when you think that men may be required to wear ties to work whereas women aren’t.

The “line” is crossed, however, when the dress code isn’t based on social norms, differs greatly between men and women, or imposes a greater burden on women.

An example of a policy based on social customs would require men, but not women, to cut their long hair. An example of a policy that differs too greatly by gender would allow men to wear “professional attire” while requiring women to wear a designated uniform.

Thou shalt avoid religious accommodation violations
Avoiding religious discrimination claims is trickier. Both federal and state discrimination laws require employers to provide certain accommodations to employees who request them because of their religious beliefs.

For instance, an employee who needs to cover his head or wear a beard for religious reasons most likely will have to be accommodated, even if that’s in violation of the policy held for other employees.

The one exception to that requirement occurs when an employer can show that the accommodation would be an undue hardship. For example, if religious headwear would pose a legitimate safety threat around the machinery that the employee uses, an employer wouldn’t be required to provide the accommodation.

On the other hand, an employer’s interest in a standardized appearance — for the company’s own sake — rarely will be enough to claim undue hardship.

OK, but what about the employee who makes a request based on some belief you’ve never heard of? Here’s the important thing to remember: Just because you’ve never heard of the religion doesn’t mean that it isn’t valid. A strong and sincere belief can rise to the level of a religious commitment even if it’s not part of a recognized religion.

Religious discrimination laws define religion as “moral or ethical beliefs about what’s right or wrong that are sincerely held with the strength of traditional religious views.” Therefore, when an employee poses an issue relating to religious practices, pay attention to what’s being asserted, and analyze whether you’re in fact dealing with a religion-based issue.

Tattoos and body piercings: Some specific issues
A common issue that many employers face in today’s modern culture is whether to allow tattoos and body piercings. Under the law, employees have no legal right to show body art in the workplace because it isn’t considered a religious or racial expression.

While employers have the legal right to require employees to cover or remove tattoos or piercings, a reasonable approach would be to base your policy on the nature of your workplace and set the grooming standards accordingly.

Although race discrimination claims based on dress codes generally fail, one exception is worth noting. Employees claiming race discrimination must show that the dress code had a disparate, or unequal, impact on their particular protected class.

No-beard policies have been found to violate the discrimination laws because of their disparate impact on African-American males. Pseudofolliculitis barbae — a skin condition aggravated by shaving — occurs only in African-American males. Policies that require all male employees to be clean-shaven therefore disparately affect a protected class of employees and should be avoided.

Bottom line
Much to your surprise, employers actually have a good deal of leeway when drafting a dress code. The key is in the implementation. By using the following key pointers, you can avoid potential legal problems:

  • Institute a rational dress code that’s grounded in business-related reasons, such as maintaining a good public image and/or ensuring health and safety.
  • Spell it out. Make your policy specific, and include examples of appropriate and inappropriate dress. That will help you avoid problems of “interpretation.”
  • Communicate the policy to all employees and job applicants. The onset of warmer weather is the perfect time to send employees a “reminder” memo, including a copy of the policy.
  • Provide reasonable accommodations when appropriate.
  • Apply the policy consistently to all employees, and take disciplinary steps when the policy is violated.