Despite the fact that there are no federal laws outlining what employer dress code policies can and cannot do, there are still plenty of ways dress codes can get employers in legal trouble. Legal challenges to dress codes are often based on allegations of gender bias, religious bias, race/national origin bias, or disability bias. To stay in compliance, ask yourself these questions about your dress code:
- Does my policy create a burden for one gender, but not the other?
- Does my policy infringe on an employee’s religious beliefs?
- Does my policy infringe on a cultural aspect of specific race or national origin?
- Does any covered disability prevent an employee from complying with my policy?
- Is complying with my policy differentially difficult for workers over the age of 40?
“Private employers can implement dress standards for employees as long as they can provide a business justification for them and it doesn’t affect one group of employees more than another group of employees. So, you’re always safe if you have a legitimate business reason for a particular dress code policy.” Kristine E. Kwong told us in a recent BLR webinar. “If you just kind of make up a dress code policy, but you really can’t justify it through business necessity, you will have a hard time defending it.”
Instead, you should implement a policy in line with these dress code best practices:
- Limit the policy. 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. Common business reasons include sustaining a positive public image, promoting productivity, and complying with health and safety standards.
- Review for disparate impact. “You should also look closely at the potential impact of a dress code on people of color, women, religious groups, or people with disabilities.” Kwong noted. 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. See if the business reason can still be accomplished with a change in the policy. If it can, then change it to not be discriminatory but still accomplish business needs.
- Communicate the policy clearly. 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 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. Be specific about what is, and isn’t, permitted. Some employers have used posters, brochures, and even fashion shows to get the word out. However, be aware that, if you get too specific about prohibited items of clothing, some employees will search for loopholes. (Some employers even survey the employees to get their opinion in advance. This addresses morale issues before you begin).
- Implement the policy consistently. Employers should be careful to apply dress code and grooming requirements evenhandedly to all employees to avoid claims of discrimination. (Don’t overly burden one gender, for example.) 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 also be applied consistently and should be fully documented.
- Consider the policy as a guide. 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. Then use coaching or performance appraisals to bring offenders in line, and enforce your policy as consistently as possible.
- Consider uniforms carefully. If you do require uniforms, try to involve your workers in deciding on uniform choices and colors. Provide some variety if you can. If your workers feel that they have input, they will be happier. Also, consider logo ware – you get a wardrobe that gives your organization a consistent image, and the employees see the benefit. (Some employers have “logo days” even if the logo items aren’t worn every day.)
- Investigate employee concerns. If employees complain about a coworkers’ dress or grooming, investigate the complaint. If needed, address the problem with the coworker immediately. But, if the complaint is unfounded, explain why to the complaining individuals.
For more information on creating an appropriate dress code policy, order the webinar recording of “What Not to Wear: How Employers Can Fashion and Enforce a Workplace Dress Code Policy.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Kristine E. Kwong, Esq. is a partner in the Los Angeles office of law firm Musick, Peeler & Garrett, LLP. (www.mpglaw.com) Her practice includes the drafting and updating of handbooks, policy manuals, codes of conduct, and severance packages, and she regularly produces and presents training programs for employers on current issues of employment law.