Summer is the time of year when employees can test the limits of dress codes. So, now is a good time for employers to make sure they understand their rights and responsibilities regarding dress codes. Here are some key points to consider, as well as some best practices for enforcing summer dress codes.
Laws impacting dress codes
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 and the U.S. Supreme Court has ruled 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, the U.S. Supreme Court’s ruling, 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.
Religious accommodations
Title VII and several state laws also prohibit 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 doing so would impose substantial increased costs in relation to the operations of the particular business (that is, 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
As with dress codes, grooming standards must comply with federal, state and local nondiscrimination laws. For example, about 20 states and 40 local jurisdictions have enacted laws expressly prohibiting hairstyle discrimination in employment.
Some examples of practices that could be found to violate laws that prohibit hairstyle discrimination include:
- Prohibiting twists, locs, braids, cornrows, Afros, Bantu knots or fades.
- Telling an applicant or employee with locs that they can't be in a customer-facing role unless they change their hairstyle.
- Refusing to hire an applicant with cornrows because their hairstyle doesn't fit the "image" the employer is trying to project.
- Transferring an employee to a non-customer-facing position because a customer complained about their Afro.
Even in the absence of an express prohibition on hairstyle discrimination, enforcement agencies and employees may continue to assert that such discrimination is already barred by laws prohibiting race discrimination. Also, consider the potential impact of hairstyle restrictions on recruitment, morale and retention.
You may also have an obligation to accommodate employees' hairstyles under federal, state and/or local laws. For instance, under federal law, employers with 15 or more employees must provide reasonable accommodations for employees' sincerely held religious beliefs or practices, unless doing so would impose substantial increased costs in relation to the operations of the particular business (that is, undue hardship). For appearance and grooming standards, this typically means making an exception to a policy when it conflicts with an employee's known religious beliefs or practices. For example, an employer that has a policy limiting the length of employees' hair might need to make an exception for an employee who maintains uncut hair for religious reasons.
To avoid potentially discriminatory practices, consider simply requiring employees to keep hair kempt. However, conscious and unconscious biases may impact what decision-makers view as "kempt," and some may wrongly presume that certain hairstyles are inherently messy or disorderly. Clarify that kempt means that the hair is clean and well combed or arranged, and that employees can comply with a variety of hairstyles, including but not limited to locs, cornrows and Afros, that meet those criteria.
Where employers have legitimate health or safety concerns related to hair, they can generally consider a requirement for hair ties, hair nets, head coverings and/or alternative safety equipment, provided they aren't enforced in a discriminatory manner and don't otherwise violate applicable law.
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.
Best practices
Here are some best practices for enforcing dress codes in the workplace.
Develop a policy.
Develop or update your policies on personal appearance and hygiene. Set clear guidelines for what constitutes appropriate and inappropriate dress and provide specific examples, such as "collared short-sleeve shirts are permitted, but t-shirts are prohibited." Consider workplace safety, the image your company wishes to project, employee comfort, and morale.
Reiterate your standards.
As summer approaches, remind your employees of your dress and grooming standards. Some employers adopt a more relaxed dress code for the summer months. If this is the case at your company, provide employees with guidance on what is acceptable and what is not, such as "open-toed shoes are permitted, flip flops are not."
Be fair and consistent.
Be sure your policy doesn't unfairly single out a category of employees, or discriminate against a particular group. Your policy should not differ greatly between men and women, or impose a greater burden on one gender over the other.
Consider religious accommodations.
Federal law and many state laws require employers to provide a reasonable accommodation for an individual's sincerely held religious beliefs or practices, unless doing so would impose substantial increased costs in relation to the operations of the particular business (that is, undue hardship.). Some religious practices — such as tattoos, piercings, beards, and headwear — may conflict with your dress and grooming standards. If they do conflict, consider possible reasonable accommodations, such as granting an exception to the policy.
Consider disability accommodations.
Absent undue hardship (defined differently than for religious accommodations), covered employers are also required to provide a reasonable accommodation for an individual’s disability. There may be cases where an employee cannot comply with your policy as a result of a disability. For example, if your policy prohibits facial hair, you may need to provide a reasonable accommodation to an employee who has a disability that prevents them from shaving closely.
Train supervisors.
Train supervisors on how to handle situations where they think a violation in dress code may be the result of an employee’s religious beliefs, disability, or other protected reasons. Supervisors should know how to discuss possible accommodations with the employee (known as the "interactive process") or to direct these concerns to an HR representative.
Address violations promptly.
Once you learn that an employee has violated your rules, address the issue promptly. Prior to speaking with the employee, consider what can be done to resolve the issue that day, such as allowing the employee to wear a company shirt to cover prohibited clothing or tattoos, asking the employee to remove or cover a piercing, or sending the employee home to change. If you ask the employee to go home to change, allow the employee to use accrued paid time off for the missed time.
Meet with the employee in private.
Once in a private location, be direct and explain how the employee violated your policy. For example, "you reported to work in flip-flops, which are prohibited by our policy for safety reasons." Be clear about your expectations, explain potential consequences, set a timeline for resolution, and discuss how you plan to follow up.
Document.
Document all disciplinary actions, including verbal warnings. Retain a signed statement explaining the issue, the disciplinary action taken, and the steps the employee is expected to take to correct the problem. Keep the documentation in the employee’s personnel file. Note: Reasonable accommodation requests must be kept in a separate confidential file.
Conclusion
With summer just around the corner, now is the time to get your policies and procedures in order. Clearly communicate your dress and grooming standards and enforce them consistently and in accordance with federal, state and local laws.