Here comes summer: The worst time of the year for dress code violations. Today we’ll take a look at what you can and can’t do with dress code and appearance policies.
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, there continue to be new 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. Note that California has a law prohibiting employers from implementing dress codes that restrict women from wearing pants.
Employees pierced? Provocative? Scantily clad? How’s your dress code holding up? Get all your appearance/dress code questions answered at ERI’s special June 3 webinar, Dress Codes: Do’s and Don’ts for Regulating Employees with Tattoos, Piercings, Revealing Clothing, and Other Tricky Hot Spots.
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.
You cannot treat employees less favorably because of their national origin when implementing a dress code—for example, prohibit certain forms of ethnic dress, such as traditional African or Indian attire. You also need to look closely at the potential impact of a dress rule on women, members of religious groups, and 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 tend to 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.
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.
Dress Codes in California: Dos and Don’ts for Regulating Employees With Tattoos, Piercings, Revealing Clothing, and Other Tricky Hot Spots
Maintaining a professional-looking workforce is a growing headache for many California employers. Today’s super-casual employees present many unique challenges with what they wear on the job–from eyebrow piercings to Goth makeup, tube tops to flip flops, micro skirts to arm-length tattoos.
It’s a widespread problem: Recent surveys show that about half of Americans in their 20s sport a body piercing somewhere besides their ears, and one in four Americans ages 18 to 50 are tattooed!
Striking the proper balance between requiring appropriate dress among your workers and respecting their legal rights can be very tricky—especially among younger employees who may never have worn “business clothes.” Join us for this informative 90-minute webinar on June 3, where you’ll learn:
- The key dress code rules you should adopt in California to control your workers’ appearance while still staying within the law
- How to adopt appearance policies that keep younger workers happy without upsetting their more experienced colleagues who prefer the “suit and tie” approach
- What steps you can take to prevent specific dress code don’ts—ranging from scantily clad employees to workers with visible tattoos and piercings
- How to tailor your dress code to fit workers in different types of jobs, from the warehouse to the corner office
- When you should—or must—make dress code exceptions for workers who cite religious, cultural, or health reasons for their appearance
- How much detail you should include in your written appearance policies
- Proven tips for effectively communicating your dress code expectations to workers
- How to deal with employees who consistently push the dress code envelope—and when you should bring in your attorney instead of confronting an employee yourself