By Todd Anderson, HR Director GBS Benefits
Despite the fact that employee dress codes have been around for a long time, employment laws are pretty sketchy on the subject. Employers have a fair amount of flexibility when writing a policy on employee dress or appearance. Organizations always have the right to enforce a dress code policy that is business-related, promotes the company’s image, or satisfies customers’ expectations.
Can a business dress code policy prohibit its employees from wearing jeans, short skirts, tight-fitting clothes, muscle shirts, and flip-flops? Can employers prohibit their employees from having visible tattoos, body piercing, or facial jewelry, and coming to work with unnatural hair color?
Generally speaking, the answer from a legal perspective is “yes.” However, here are three caveats:
1. Discrimination claims do occasionally arise due to employee dress code policies.
The most common discrimination claims tied to dress code seem to be related to gender, religion, or race. Below are some ideas to keep in mind when writing or enforcing a dress code policy.
Gender discrimination. Dress-code-based gender discrimination claims generally aren’t successful. Both the Equal Employment Opportunity Commission (EEOC) and the courts have held that to create a professional atmosphere, employers may establish different dress codes for men and women without violating discrimination laws. That makes sense when you think that men may be required to wear ties to work whereas women are not. The “line” is crossed, however, when the dress code is not based on social norms, differs greatly between men and women, or imposes a greater burden on women.
Religious discrimination. Avoiding religious discrimination claims is trickier. Both federal and state discrimination laws require employers to provide certain accommodations to employees based on their religious beliefs or practices. The one exception to that requirement occurs when an employer can show that the accommodation would be an undue hardship. For example, if religious headwear, beard, or clothing pose a legitimate safety threat around machinery the employee uses, an employer would not be required to provide the accommodation. Safety always trumps religious accommodation requests.
Race discrimination. Although race discrimination claims based on dress codes generally fail, one exception is worth noting. Employees claiming race discrimination must show that the dress code had a disparate, or unequal, impact on their particular protected class. No-beard policies, for example, have been found to violate the discrimination laws because of their disparate impact on African-American males. Pseudofolliculitis barbae — a skin condition aggravated by shaving — occurs only in African-American males. Policies that require all male employees to be clean-shaven therefore disparately affect a protected class of employees and should be avoided.
2. Tattoos and body piercing: Some specific issues.
A common issue that many employers face in today’s modern culture is whether to allow tattoos and body piercing. Under the law, employees have no legal right to show body art in the workplace because it isn’t considered a religious or racial expression.
While employers have the legal right to require employees to cover or remove tattoos or piercings, a reasonable approach would be to base your policy on the nature of your workplace and set the grooming standards accordingly.
3. Be practical and consistent with your business dress code policy.
It may make perfect sense for an employer to have a fairly stringent policy for employees who meet the public on the company’s behalf, regularly deal with customers, and are otherwise your company’s face. But does it make sense to have that same policy for employees who work in the warehouse? Who are on the assembly line? Who do nothing but take calls in a call center? Some of the discrimination claims that arise out of dress codes really arise out of their inconsistent application.
The coverages discussed herein are for illustrative purposes only. The terms and conditions of your specific policy may differ from those described. Please consult the provisions of your policy for the terms, conditions, and exclusions that apply to your coverage.