Employers adopt dress, grooming, and hygiene policies to help maintain a professional and safe work environment. Below, we address some applicable laws and other factors to consider as you draft, implement, and enforce personal appearance policies.
Dress:
In general, employers have broad discretion under federal law to establish reasonable dress code standards. However, policies must not be designed to exclude workers based on race, gender, national origin, or other protected characteristics and must not create undue burdens for any protected class of employees. For example, typically, an employer cannot bar employees from wearing traditional cultural garb.
Sex-Based Differences:
While courts have generally found that different dress codes for men and women may be allowed as long as they are equally burdensome, such a practice could be problematic. Unless your business must have gender-specific dress codes, the best practice is to adopt a gender neutral dress code. For instance, an employer could give employees a broad list of appropriate attire and allow them to choose what to wear.
Gender Identity Protections:
Title VII of the Federal Civil Rights Act (Title VII) prohibits employers from discriminating against applicants and employees on the basis of their sex (among other characteristics). In recent years, the Equal Employment Opportunity Commission (EEOC), which is the agency that enforces Title VII, has taken the position that protections on the basis of sex extend to gender identity. Additionally, many states and local jurisdictions have enacted laws that expressly prohibit gender identity discrimination. These laws generally require employers to allow employees to dress consistent with their gender identity. When drafting dress codes, keep in mind the EEOC's position, state and local laws, and the fact that some individuals may identify as non-binary (they don't identify as exclusively male or female). As mentioned above, it's a best practice to adopt a gender neutral dress code.
Reasonable Accommodations:
Title VII, and several state laws, also prohibits employers from discriminating against applicants and employees on the basis of religion. Covered employers must also provide reasonable accommodations for employees' sincerely held religious beliefs or practices, unless it would cause an undue hardship. For dress codes, this typically means making an exception to the policy when it conflicts with an employee's known religious beliefs or practices. For example, an employer that prohibits employees from wearing hats and other head coverings would generally be required to make an exception for an employee who wears a head scarf as part of their religious practices.
Grooming Standards:
Hairstyles:
As with dress codes, grooming standards must comply with federal, state, and local nondiscrimination laws. For example, some employers have banned employees from wearing dreadlocks. Some courts have ruled that this type of ban is allowed if applied consistently. Others have maintained that such a policy could unfairly impact certain employees. Instead of having hard and fast rules banning specific hairstyles, many employers simply require employees to keep hair kempt (clean and well combed or arranged), a policy with which applicants and employees with dreadlocks could generally comply.
Facial Hair:
As mentioned above, employers may be required to make reasonable accommodations for employees' sincerely held religious beliefs and practices. An employer that requires employees to be clean-shaven or to closely trim beards would generally need to make an exception for individuals who maintain beards as part of their religious practices. In certain situations where employees have beards and must wear respirators in the workplace for safety reasons, bearded workers may be able to use loose-fitting respirators to effectively protect them in the workplace.
Some medical conditions may also prevent an individual from maintaining a clean-shaven face. Under the Americans with Disabilities Act (ADA) and similar state laws, employers generally would be required to provide an exception to the policy if the condition was considered a disability as defined under the law, unless the accommodation would impose an undue hardship.
Note: The ADA and Title VII apply different standards when evaluating whether an accommodation would impose an undue hardship. Employers should consider consulting legal counsel when making an undue hardship determination.
Fragrances:
Some employees are sensitive to synthetic fragrances and may have trouble breathing and working when near them. To address this, some employers have created a policy on fragrances, asking employees to refrain from wearing heavily scented products in the workplace.
Under the ADA and similar state laws, employers are generally required to provide a reasonable accommodation if the individual's fragrance sensitivity qualifies as a disability, unless it would impose an undue hardship on the business. The Department of Labor's Job Accommodation Network (JAN) suggests a number of possible actions employers could take to accommodate an employee with fragrance sensitivities, including but not limited to:
- Maintaining good indoor air quality
- Discontinuing the use of fragranced products
- Modifying workstation location or work schedules
- Providing an air purification system
- Encouraging use of teleconferencing or other forms of technology instead of face-to-face meetings
Visible Tattoos and Piercings:
In general, employers have discretion when determining what restrictions to impose on body art. Employers must make sure, however, that their policies on body art (as with dress and grooming standards) are applied consistently, and do not create undue burdens for any protected class of employees. Additionally, since some religious practices involve tattoos and/or piercings, employers may be required to provide an exception for an employee's body art. Keep in mind that requiring an employee's religious body art to be covered may not be permitted if that would violate the employee's religious beliefs.
Conclusion:
Make sure your dress, grooming, and hygiene policies comply with all applicable laws and promote workplace diversity and inclusion.