We’re in the process of rewriting our employee handbook, and we want to modify our employee appearance policy. What do we need to consider? We want our employees to look professional, but we don’t want to get caught in a lawsuit. —Ronald W., San Jose
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Employers commonly create dress codes and grooming policies to maintain a professional workplace. Here we take a look at issues to keep in mind.
Safety hazards or concerns in the workplace may affect your dress code. Employers must maintain a safe and healthful work environment for employees, and thus may require workers to wear certain gear, such as hard hats or closed-toed shoes. Employers may implement a rule preventing employees from wearing jewelry or loose clothing if they work around machinery in which those items could get caught. In addition, health and safety laws impact how employees may dress when preparing or handling food. For example, cafeteria workers can be required to wear gloves and hair nets.
For certain industries in which workers must wear respirators, employers may require as part of a dress and appearance policy that employees are clean shaven. Respirators don’t fit tightly over beards, so employees with facial hair could be at risk when working with toxic fumes or materials. Although such a rule may have an adverse impact on the basis of race or religion, it is acceptable to require employees who wear respirators to be clean shaven.
Gender discrimination often becomes a concern when talking about dress codes. The California Fair Employment and Housing Act gives women the right to wear pants in the workplace—a California employer cannot require women to wear skirts or dresses to work, unless the employer requires that uniforms or a costume (e.g., for dramatic roles or specific character portrayal) be worn as part of the employment. California employers also cannot prohibit an employee from dressing appropriately to that person’s gender identity. For example, if one of your employees is anatomically male but whose gender identity is female, you can’t prohibit that person from dressing consistently with the employee’s female gender identity.
Although you must let employees dress consistently with their gender identity, you still can maintain appearance, grooming, and dress standards. For example, if your employee appearance standard requires women to dress their “personal best,” a worker whose gender identity was female would have to comply with this female dress standard. You can set different appearance standards or dress codes for men and women–but you may run afoul of the discrimination laws if your requirements significantly impact or burden one sex and not the other. For example, if you require uniforms, they can be tailored differently by gender, but you cannot insist on uniforms for men only.
In addition, employers should keep local laws in mind when implementing dress codes to steer clear of unlawful discrimination. For example, a San Francisco law bans employment discrimination based on weight, height, and appearance. A Santa Cruz ordinance prohibits employers from discriminating on the basis of hair colors that are not found in nature and visible tattoos and piercings. However, although a Santa Cruz employer cannot refuse to hire a person with eyebrow and lip piercings, that employer can instruct the worker to remove the piercings while at work.