Here comes summer and the worst time of the year for dress code violations. Today’s Advisor takes a look at what you can and can’t do with dress code and appearance policies, courtesy of HR.BLR.com’s “Ask the Expert.”
Can dress codes be different for male and female employees?
Most of the legal problems relating to dress codes have centered on the issue of gender bias—but this does not mean that the code must be the same for both genders. Courts have concluded that employers may enforce dress codes even if they are different for men and women, as long as the standards for each gender are reasonable for the business environment at issue.
For example, a corporate employer could mandate that men may not wear skirts and must wear ties. However, the Equal Employment Opportunity Commission (EEOC) and the courts continue to face claims of gender discrimination because of company policies on beards, long hair, short skirts, pants, and other matters of apparel and grooming that affect men and women differently.
Men have complained that necktie rules discriminate against them, for example; women have complained that rules requiring them to wear skirts or dresses are discriminatory.
Generally, courts take the position that since dress codes do not involve “immutable characteristics” such as gender and race, they do not necessarily reflect bias.
Wherever possible, of course, the best practice is to avoid dress requirements that differentiate by gender. Jacket and tie requirements, for example, might be replaced with a requirement of “professional business attire,” which, in ordinary business custom and practice, means suit and tie for men and a business suit for women.
Some states have passed laws affecting dress code requirements. For example, California has a law prohibiting employers from implementing dress codes that restrict women from wearing pants.
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What best practices are recommended for employee dress codes?
In general, an employer’s most prudent approach is to limit dress codes to health and safety concerns and to those workers whose jobs require them to deal with the public on a face-to-face basis.
Employers should also look closely at the potential impact of a dress rule on minorities, women, members of religious groups, or people with disabilities.
If the proposed rule is likely to have a disparate impact on one or more of these groups, employers should be prepared to show a business reason for the rule and make reasonable accommodations for employees put at a disadvantage by it. Common business reasons include sustaining a positive public image, promoting productivity, and complying with health and safety standards.
Once an employer has developed a policy that is appropriate for its business, the policy should be clearly communicated to employees. In order to ensure that the employees have a good understanding of what is appropriate under the new policy (and what is not), employers should explain the reasons for setting the policy and the consequences for failure to comply.
Some employers have used posters, brochures, and even fashion shows to get the word out.
Employers should be careful to apply dress code and grooming requirements evenhandedly to all employees to avoid claims of discrimination. However, when necessary, a reasonable accommodation should be provided for employees who request an exception based on their protected status.
Discipline for violations of the dress code should be applied consistently and fully documented.
It’s probably best, unless the matter is serious (e.g., it involves public contact or a health or safety concern), to put a dress code on a “recommended” or “guideline” basis.
Discharges based on personal appearance factors will be closely scrutinized by courts and government agencies.
What about casual dress policies?
For years, there has been a shift toward casual dress in offices all across the country. However, now some businesses are shifting back to a more restrictive dress code because of the difficulty for management and employees alike to define appropriate casual dress.
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Employers implementing casual dress code policies should provide specific guidelines. For example, many employers that permit casual dress draw the line at torn blue jeans (or any blue jeans), flip-flop sandals, cut-off shorts, halter tops, sheer garments, or T-shirts with sayings or slogans. Whatever the prohibitions are, they should be equally applied and clearly communicated to all employees, preferably in writing.
Bear in mind that EEOC guidelines warn employers not to treat certain employees less favorably because of their national origin when implementing a dress code. The guidelines specifically caution employers against prohibiting certain forms of ethnic dress, such as traditional African or Indian attire, while otherwise permitting casual dress in the workplace.
In tomorrow’s Advisor, we’ll get to more questions on dress codes, uniforms, and religious practices, and introduce an upcoming audio conference that will answer your specific questions on your company’s dress code and appearance issues.
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