Employers may implement whatever dress guidelines they feel are appropriate, as long as they do not discriminate on the basis of gender, race, religion, disability, or any other federally protected status. Nonetheless, it may be best to avoid imposing rigid or highly restrictive dress requirements.
Overly restrictive requirements may create resentment among employees and negatively affect morale in the workplace. Further, employees sometimes do go to court over dress codes perceived to be overly restrictive or discriminatory. Although employees rarely win such cases, the litigation itself is costly and disruptive.
In general, courts have ruled that private employers may implement dress standards for employees as long as they can provide business justifications for them, and as long as the standards do not affect one group of people more than another.
Dress Codes and Gender Discrimination
Gender discrimination is specifically prohibited by law, and “most of the dress code problems that have been seen in court relate to gender bias.” Kristine E. Kwong explained in a recent BLR webinar. “But it doesn’t mean that the code has to be the same for both genders.”
“Just because you have men and women in the workplace doesn’t mean that you need to have a uniform dress code policy for both genders. The courts acknowledge that men and women are different. And the courts also acknowledge that our cultural expectations as to how men dress and how women dress are also different.”
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. Employers can impose those cultural expectations. For example, a corporate employer could mandate that men may not wear skirts and must wear ties.
“The difference, however, comes when the cultural standards that we place on each of the genders creates more of a burden on one gender over the other gender.” Kwong warned. 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.
For more information on how dress codes might cause gender discrimination claims, 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.