Tattoos, piercings, suggestive clothing and other employee wardrobe choices can present sticky issues for employers. While companies generally have wide latitude to create and enforce their own dress codes within the workplace, they may face unexpected landmines if they don’t plan ahead.
When establishing dress codes, employers must carefully consider the goals they wish to achieve, how to achieve those goals through a formal policy and how to enforce those standards in a way that minimizes legal risk.
There are no national laws that govern dress-code policies, but employers must abide by federal anti-discrimination laws, such as the Title VII of the Civil Rights Act. Courts have generally found that employers can set their own policies, as long as those codes have a business justification, are applied fairly, do not discriminate and do not impact one particular group of employees over another.
Areas where employers can find themselves in legal hot water over dress codes include:
• Gender discrimination – Generally speaking, employers can create separate dress codes and grooming requirements for men and women, although these standards shouldn’t vary greatly.
• Religious discrimination – Corporate dress codes may not conflict with the religious expectations and demands of employees and potential employees.
• Disability discrimination – Employers can also run into trouble if dress-code compliance presents issues for employees with disabilities. For example, if company-required uniforms have zippers, some disabled employees may have trouble abiding by the dress code.
• Sexual harassment – Sexual harassment is another area where employee clothing choices and dress codes can lead to potential pitfalls for employers. When employees wear tight or revealing clothing at work, in defiance of a dress code or in the absence of one, it can draw real or perceived unwanted attention or lead others to claim that their work environment is uncomfortable.
Creating a Dress Code
Unfortunately for employers, there is no one-size-fits-all dress code. Each organization needs to carefully think about its particular situation when creating or reviewing the corporate dress code. Here are some steps to consider:
• Know your organization and industry – The definition of “professional” dress code can vary widely by industry and job and can vary within a company, so employers should also consider safety issues when creating the dress code. Any decisions made should not be arbitrary, but should instead be rooted in common sense and should have a business justification.
• Talk to the experts – Companies should consult with HR, in-house attorneys and outside counsel when new or revised policies are still in the planning stages. These experts can help ensure that the policies are legal, thorough, enforceable and realistic.
• Enforce the policy consistently – Whatever policy the company chooses, employees and supervisors should receive training on it. It must be applied fairly at all times.
• Develop a process for discipline and appeals – If employees have questions or problems with the dress code, direct managers and supervisors should generally be the first point of contact and there should be clear steps in place to deal with infractions. Employees who seek an accommodation to the dress code should also know who to talk with about their concerns. If problems or concerns continue, the company should document every step it took to make an accommodation before resorting to discipline.
A well-written, consistent dress code will provide clarity, create a productive work atmosphere and help to ward off potential problems.
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