Dress codes: Legal tips for employers

August 15, 2011
in HR / Employee Relations

dress code policyMost organizations create a dress code policy to ensure that employees come to work in appropriate attire and exhibiting acceptable appearance. But the way those business dress code policies are implemented can be the root of employee lawsuits.

Triggers for courtroom confrontations include Title VII religious accommodation requests that bump up against safety requirements; different grooming standards for men versus women; and applying discipline to employees who refuse to abide by the dress code policy.

FAQs about dress codes

1. A company has a strict dress code policy requiring all machine operators to wear pants while working. Can the employer discipline a veteran machinist who claims that she has converted to a religion that requires her to wear dresses?

If you prove that your dress code is for safety purposes, you will win in court. Long before the Occupational Safety and Health Act or Title VII, there was a hard and fast industrial rule: no loose clothing around moving machinery. An operator who wants to wear a dress under such conditions had better find a new job. There is no court that would require a manager to give such an accommodation.

Use this dress code checklist to assess dress code violations:

  • Would the dress accommodation create a safety hazard? Is the employee required to work around moving machinery or in areas where skin exposure to chemicals could be dangerous? If the answer to either question is “yes,” you can turn down the request.
  • Is the dress code for appearance only? Courts have ruled against companies that refused to allow employees to wear turbans as a religious expression, where no safety hazards were concerned. A turban in an office setting is harmless; a turban around machinery can be dangerous.
  • Can the dress code be seen as sexual stereotyping? For instance, it is discriminatory to require female employees to wear uniforms, while males are allowed to dress as they choose.
  • What is the nature of the employee’s public contact, if any, and the normal expectations of outside parties with whom the employee will work? Employees who work directly with the public could be held to different standards than those who work in the office.

2. Can an employer legally require different grooming standards for women and men?

Most courts agree that you can generally require different grooming standards for women and men as long as your policy does not inhibit equal access to employment and other opportunities, impose a greater burden on one sex versus the other, or give a significant employment advantage to one sex over another.

3. Is it a violation of employees’ free speech rights to ban insignia, including controversial or political buttons, t-shirts, emblems, etc.?

When it comes to the issue of freedom of expression on the job, the courts tend to look at each incident on a case-by-case basis. Freedom of expression is not always a protected activity. Judges are cautious about making precedent-setting rulings.

In general, the courts consider whether an employer has a valid business justification for banning t-shirts, buttons, emblems, etc. Some accepted justifications for banning insignia include promoting safety, preventing alienation of customers, preventing adverse effects on customers/patients, and preventing dissension and conflict. Also, if messages are denigrating, confrontational, or disparaging, an employer can enforce a ban.

4. How can an employer approach an excellent performer whose style of dress (bare midriff sweaters, too-short skirts) is inappropriate for the office?

Many employers—especially those that deal with the public—have implemented dress codes to ensure that their employees maintain the company’s image with customers. If your company has such a policy, use it as the catalyst for confronting this employee about her unprofessional appearance.

However, be aware that dress codes that are applied indiscriminately or are not enforced consistently can have legal ramifications.

5. How should an employer deal with employees who refuse to comply with company dress code policies?

When employees refuse to comply with your dress code, you have several options for dealing with them. First, you should start off by reiterating your policy, just to ensure that no one can argue that they didn’t know about it. To clear up any misunderstandings, hold a meeting or send a memo that goes over specific violations. Don’t say, “The shirt Jane wore…”; use general terms to describe the mistakes made (e.g., t-shirts, yes, cropped shirts, no; khakis are ok, but torn/frayed khakis are not; dressy sandals, but not beach flip-flops).

For repeat offenders, you may have to go through the disciplinary process; however, if firing employees for dress code violations is too extreme, consider sending them home to change. Non-exempt employees can be sent home off the clock (i.e., unpaid). Give employees fair warning before you start sending them home. The prospect of losing pay or vacation time may be enough of a deterrent.

Sending employees home may not be viable, though, if it means that too many employees would be gone at once. One way around this is to send employees home in shifts, rather than immediately. Although some employees will be working for part of the day in their inappropriate attire, you’re still getting your point across by sending them home without pay.

For dress code violations that involve “underdressing” (e.g., cropped tops, mini-skirts, low-slung pants), some HR managers have solved this problem by keeping a few extra articles of clothing on hand—unflattering clothing, like large baggy sweatpants, sweatshirts, or t-shirts—that employees must wear all day.

Michele Uribe January 31, 2017

We are a family owned, incorporated Restaurant. If we want our servers to wear a particular type of shirt where we give them their first one, but require them to purchase replacement shirts. The shirts that we are asking them to wear are not the standard white restaurant attire, are we required to purchase all of their shirts and also launder their shirts they wear since we are requiring them to wear a specific type/style of shirt?

Reply

Leave a Comment