Author: Marci E. Britt, Fisher & Phillips
This Supervisor Briefing examines the law and best practices for dress codes and appearance policies in the workplace. It covers the following topics:
- Introduction to Dress Codes and Appearance Policies
- Dress Codes and Their Application
- Reasons for Implementing a Dress Code
- Types of Dress Code Policies
- Grooming Standards
- Jewelry Policies
- Piercings and Tattoo Policies
- Fragrance and Perfume Policies
- Training on Dress Codes and Appearance Policies
- Handling a Dress Code Violation
- Enforcing Dress Codes
- Test Yourself
Introduction to Dress Codes and Appearance Policies
An employer may want to implement dress codes and appearance policies for many different reasons, including helping it to promote a positive image to clients and customers as well as to emphasize the importance of professionalism among employees. A dress code and appearance policy may instruct employees about what clothing and accessories they can wear; how they can style their hair; what jewelry they can wear (and where it is located); whether or not they may wear tattoos, makeup etc.; and other things that go along with an employee's appearance.
A dress code or appearance policy that is based on the employer's needs and applied uniformly will usually be deemed legal. Once the employer implements a policy, the supervisor must make sure that employees under their supervision know about the policy and that the policy is applied consistently, while keeping in mind that certain situations may require flexibility (especially when an employee raises gender, religious or cultural concerns).
Having an accessible, easy to understand dress code lets employees know from the beginning what they can wear in the workplace and makes it easy for supervisors and managers to monitor compliance with the dress code. There are, however, some pitfalls to keep in mind when implementing and enforcing an employer's dress code.
This Supervisor Briefing provides general guidelines for implementing dress codes and appearance policies. Although this Supervisor Briefing primarily focuses on federal antidiscrimination and labor laws, the supervisor should be aware that state or local laws could also apply to the employer's workforce. Supervisors and managers should be aware of the various laws and best practices for enforcing dress codes.
Dress Codes and Their Application
A dress code provides employees with guidelines concerning what they should and are permitted to wear in the workplace. Although no specific laws give employees the right to wear certain clothing, an employer's dress and appearance policy should be neutral. Generally, it is permissible to treat male and female employees differently, such as requiring men to wear neckties. However, if a dress code requires one sex to do something the other is not required to do, the policy may be discriminatory. For example, policies requiring female employees to wear uniforms or smocks, contact lenses, or sexually provocative clothing and not requiring the same of male employees have been found to violate Title VII of the Civil Rights Act of 1964.
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A dress code or requirement - such as uniforms - that subjects an employee to harassment may be unlawful.
In one case, the employer of a lobby attendant in an office building required her to wear themed uniforms, which changed every six months. The uniform in this case was to celebrate the Bicentennial of the United States. It consisted of a flag poncho which snapped at the sleeves and was open at the sides. Underneath the poncho, the employee was only allowed to wear "blue dancer pants and sheer stockings" but could not wear a shirt, blouse, leotard, pants, or a skirt. Unfortunately, because of her height, when the employee wore the uniform, various parts of her body were revealed. The employee expressed her concern, and the uniform was slightly altered, but still did not fit correctly. As a result, she was subjected to sexual propositions, lewd comments, and gestures. She complained to her employer, but the employer did not do anything to remedy the situation. When she wore another, less revealing uniform from a prior event, she was asked to leave the floor and ultimately terminated. The court found the employer had violated Title VII and engaged in unlawful sex discrimination.
This case serves as a reminder that the employer does not have the unfettered discretion to require employees to wear anything, including uniforms that are revealing and sexually provocative.
Reasons for Implementing a Dress Code
It is generally a good idea for the employer to include a dress code policy in an employee handbook in order to make sure that the employees are aware of the employer's expectations to maintain a professional atmosphere. Instituting a dress code and requiring employees to dress in a professional manner sends a message to the employer's customers, clients and business associates and allows the employer to convey a particular type of image to the public. An employer also may wish to implement a dress code for safety and/or health reasons and state that certain clothing is not permissible since it may interfere with employee duties and responsibilities and potentially cause injury. Furthermore, an employer may want to have a uniformed workforce or require different employees in different departments to wear different clothing according to their job duties.
It is not uncommon for an employer with only a few employees not to have a written dress code. At some point, though, it may be necessary even for a small employer to create and implement a dress code in the workplaces to avoid confusion.
Most dress codes in some way clarify or limit the clothes that an employee can wear (e.g., no halter tops) and some employers may even go as far as to specify hair length, style and facial hair requirements (e.g., sideburns on men cannot go below the earlobe).
More recently, some employers have also begun to include in their dress code policies prohibitions on certain types of jewelry. For example, an employer's dress code may say that its employees cannot wear any facial jewelry, such as nose or eyebrow rings. This type of policy can be difficult to enforce since some courts have considered whether facial jewelry is something an employee must wear as a part of the practice of his or her religion.
Types of Dress Code Policies
The most effective policy is one that is written to provide clear guidance to employees about how the employer wants the workforce to look internally and especially to its customers or clients.
A key part of any dress code is to define what the employer considers to be business casual, for example. This is particularly important in places with a more casual approach to dress and, of course, during the summer months. Employees are more likely to focus on the casual part of any dress code and ignore the rest.
Many employers tell their employees that the dress code is business casual. However, it may be difficult for employees to know what exactly business casual means.
Generally, business casual allows employees to dress comfortably while still maintaining a professional and neat appearance. Examples of business casual clothing include:
- Dress pants;
- Collared shirts (such as golf shifts or polo shirts);
- For women, dresses and skirts (that come to the knee).
Business casual generally would not include:
- Bermuda shorts;
- Halter tops or tube tops;
- Athletic apparel.
The supervisor should keep this in mind and make sure that employees comply with any business casual dress code.
Additionally, the dress code policy should clarify when, and if, business or more formal attire is required. For example, if an employee frequently meets outside of the office with prospective clients or customers, an employer will want to make clear that when attending those (and other more formal) meetings, the employee should be expected to dress in business attire. Business attire typically refers to suits, both for men and women.
The employer also may wish to adjust its dress code with the seasons and issue summer dress codes guidelines to instruct employees about what clothing is and is not permissible during hot weather months. The same can be said for casual Fridays. Instituting casual Fridays may boost employee morale and create a more relaxed workplace atmosphere before the start of the weekend.
Many dress code and appearance policies also refer to grooming standards. Such grooming standards may address issues such as hair styles, facial hair and hygiene. In implementing such policies, the employer must be careful and not burden one gender more than the other.
It is important that grooming standards regulate the appearance of men and women to the same degree - even if the exact requirements are different. One court noted that policies regulating hair length for men but not women did not violate Title VII because the policy subjected men and women to strict grooming policies - that is, men were required to keep their hair trimmed above the earlobe and were permitted to wear a neatly-trimmed mustache but not a beard; women were required to wear a "neat" hairstyle, were not permitted to wear off-beat or extreme hair styles, and were required to secure long hair so it did not fall freely.
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Grooming standards have also been challenged as racially discriminatory. An example of a facially neutral policy that may subject an employer to liability because of its impact on a certain group is a "no beard" policy.
However, some courts have upheld an employer's appearance policy limiting the length of men's hair while allowing women to wear longer hair and held that such a policy did not constitute gender discrimination in violation of Title VII because such grooming standards are not based on a physical attribute that is unchangeable.
Furthermore, in enforcing facial hair policies, the employer should be wary of the potential for race discrimination. For example, Psuedofolliculitis barbaeis is a skin condition predominantly affecting black men and is treated by allowing the beard to grow. Seemingly innocuous no-beard policies have been found to be racially discriminatory if there is no good business reason for the policy.
The employer also may want to address if and when jewelry can be worn in the workplace. Although jewelry is a form of personal expression, it may cause safety risks at work and employer may choose to prohibit employees from wearing it. In such situations, the Occupational Safety and Health Administration (OSHA) offers guidelines for the safe use of jewelry as well as suggestions when jewelry should or should not be worn. For example, dangling jewelry can create a safety hazard, such as becoming caught in operating equipment, being a conduit for electricity and transferring unwanted heat to the body. The employer should highlight these risks and clearly address them in the grooming policy.
The employer should also keep in mind other safety concerns related to jewelry. For example, those working with children should not wear sharp jewelry because of the potential to injure a child. Or, jewelry exposed to chemicals could create adverse reactions and pose a hazard to the employee as well as coworkers. The employer also may desire to prohibit employees from wearing jewelry because it interferes with the employer's clean, neat and professional public persona and professional image. However, the employer and supervisor should evaluate each situation on a case by case basis, and carefully review the employee's job function and the type and amount of jewelry the employee is seeking to wear.
Although the employer should make sure that any policy regarding jewelry is applied in a consistent manner, it should be prepared to make reasonable accommodations based on religion (e.g, wearing a cross, star of David, or crescent moon), medical needs (e.g., a medical alert bracelet) and national origin especially when the requested accommodation does not cause the employer undue hardship or jeopardize the employee's safety and health.
Piercings and Tattoo Policies
Tattoos and body piercings are generally considered to be personal expressions rather than religious or cultural expressions. Therefore, employees who choose to wear body piercings or tattoo are generally engaging in personal and individual expression rather than a religious right. Thus, most policies which prohibit tattoos and body piercings will be generally enforceable and an employer may lawfully prohibit body piercings (such as nose rings) and other body adornments (most commonly, tattoos), in accordance with reasonable rules of conduct, - even if this prohibition interferes with an employee's personal preference. However, if the tattoos or piercings are worn because of religion or culture, a prohibition of them may lead to claims of national origin or religious discrimination. So, it is wise for an employer to be aware of these differences and consistently apply these policies.
Several years ago, the EEOC filed suit on behalf of an employee who worked in the food industry. This particular employee, prepared food for customers and wore a visible nose ring, against the employer's policy. When the employer asked her to remove the nose ring, she told the employer that, as a part of her little-known religion, she was required to wear the nose ring and refused to take it out. The employer offered several accommodations, including allowing her to cover it up with a band aid, but she continued to wear the nose ring. The employer terminated her employment because she would not remove the nose ring. Although the employer ended up winning the case, this case serves as a reminder that an employer should be mindful of blanket enforcement of appearance policies.
Employees, however, do not have carte blanche to do as they please, and an employer has the right to maintain a peaceful and business-like atmosphere. In one case, an employee who was a Ku Klux Klan member had a tattoo on his forearm depicting a burning cross and a person in a white robe. Several of the employee's black coworkers complained, and the employer ordered the employee to cover the tattoo, since it was offensive and could contribute to a hostile work environment. The court found that this was a reasonable requirement, noting that the employer's decision to allow the employee to continue working with the tattoo covered was all that Title VII required.
Fragrance and Perfume Policies
Some employers may seek to introduce perfume policies or fragrance-free policies because of the adverse reactions or allergies of certain employees to scents. In fact, an employer may be liable under the Americans with Disabilities Act (ADA) for failing to accommodate the needs of employees with fragrance sensitivity and allergies to chemicals. If an employer chooses to introduce such a policy, the supervisor should make sure all employees are aware of it and that it is enforced uniformly.
Training on Dress Codes and Appearance Policies
The supervisor should make sure that all employees are provided with copies of and training on the employer's dress code policies. Also, a supervisor may wish to send reminders to employees stating when a particular dress code may be permissible or is required. For example, a supervisor may want to send an email or memo to employees reminding them that professional and business attire is required for meetings with clients or another email at the start of summer which reiterates the employer's summer dress code.
Handling a Dress Code Violation
It is important for the supervisor to have strategies in place for confronting and dealing with dress code violations. Individuals may violate the employer's dress code for many different reasons, and each reason may require a different response. For example, if poverty prevents an employee from having fresh and clean clothes to wear every day, that employee should be treated differently from an employee who is lazy and unkempt and chooses not to have good hygiene habits.
In dealing with a dress code violation, a supervisor should do the following:
- Speak with the employee violating the dress code. Upon noticing a violation of the dress code policy, it is important for the supervisor to confront the employee in a private and confidential manner to avoid embarrassment. The supervisor should ask the employee if he or she realizes the dress code violation and explain which items of the employee's attire specifically violate the employer's policy. The supervisor should not be critical or judgmental or jump to conclusions as to why the employee has violated the dress code.
- Ask if the employee has a reasonable explanation for violating the dress code. A supervisor should try to determine why the employee has violated the dress code and see if there is a medical, cultural or other reason behind it.
- Evaluate whether the employee is seeking some sort of accommodation to the dress code policy based on religion or disability. If the employee is seeking an accommodation, the issue may have to be investigated further. It is important to remind the violating employee, and other employees, that if an employee is seeking an accommodation, the employee should request the accommodation before wearing the offending clothes to work.
- Accommodate the dress code violation. If valid reasons exist, the supervisor should make every effort to grant the employee's request for a dress code accommodation. If the supervisor has a question about how to enforce the policy with regard to accommodation issues, he or she should contact HR.
- Determine how to correct the dress code violation. If no request for accommodation is sought, the supervisor should determine whether it is possible to correct the violation without sending the employee home from work. If the employee must be sent home, the supervisor should determine if it is practical to tell the employee to return to work depending on the time of day.
- Counsel and discipline the employee if needed. The supervisor should inform the employee that future dress code violations will not be tolerated. If it is a first-time violation, the employee should be told that further violations will lead to increased disciplinary measures, up to and including termination. If the individual has already violated the policy, the supervisor should determine the number of times that a violation has occurred and decide how to treat the violation accordingly
- Document the dress code violation. The supervisor should document the dress code violation in writing so that a written record can exist to protect the employer's interests.
Enforcing Dress Codes
To enforce the employer's dress code, the supervisor should follow these dos and don'ts:
- Do become familiar with the dress code and lead by example. In other words, the supervisor should make sure he or she is not doing anything that the policy tells employees not to do.
- Do take timely, appropriate action. A dress code violation is a dress code violation. Although it may be tempting to view dress code violations differently, the supervisor should remember that the employee who wears flip flops to work in violation of the dress code policy is a policy violator the same as the person who wears a mid-drift shirt.
- Do be consistent when enforcing the dress code and appearance policy.
- Don't only apply the policy to one gender. The policy should be applied equally to both men and women.
- Don't turn a blind eye to favorite employees when they violate the dress code policy.
- Can an employer's enforcement of its dress code violate antidiscrimination laws? If so, how:
- No. An employer's dress code policy could never violate any of the antidiscrimination laws.
- Maybe. There may be occasions when an employee says a particular article of jewelry or clothing is required to practice a religion or is in keeping with their cultural practice.
- Yes. Employees should be allowed to wear whatever they want to work.
- Yes, whenever a supervisor thinks an employee has violated the dress code.
- Who is responsible for enforcing an employer's dress code:
- The HR department.
- Every employee is responsible for enforcing an employer's dress code policy.
- Supervisors and managers.
- All of the above.
- Kathy is a 21-year-old receptionist in a real estate agency office. She has a nose-ring, a tongue piercing, an eyebrow ring and several visible tattoos on her arms. The employer's dress code includes provisions that govern the appearance of its employees. The appearance policy does not permit employees to show visible tattoos or have any visible piercings. Kathy's supervisor speaks with her about removing her piercings when she is at work and asks her to wear long-sleeved shirts to work to cover her tattoos. Kathy only tells her supervisor that her tattoos are religious. What should her employer do?
- Fire her on the spot.
- Accept her answer and let her continue working without any further action.
- Ask her to remove her visible piercings and cover her tattoos while at work.
- Remove the dress code and appearance policy from the handbook.
- b. The employer should remember that some articles of clothing (head scarves, for example) may be required as a part of a culture's practices. Similarly, some religions require individuals to wear a certain hair style or jewelry. These cultural and/or religious differences should be considered when enforcing the employer's dress code. Choice a is incorrect because an employer's grooming policies may violate discrimination laws if it refuses to accommodate an employee's religion. Choice d is incorrect because it is not the supervisor's job or responsibility to set the dress code, since that is the responsibility of HR and the employer. Choice c is incorrect because it is best practice to implement a dress code and grooming policy to provide guidelines to employees on what is acceptable and unacceptable workplace attire.
- d. Generally, everyone should take some responsibility for enforcing the employer's dress code. However, it will be the supervisor or manager who will be in the best position to monitor compliance with the policy. Choices a, b and c are incorrect because the HR department, supervisors and manager and all employees should all play some part in enforcing and upholding the employer's dress code.
- c. If the employer wants to maintain a professional work environment and has implemented a policy to ensure that its employees portray the employer in a positive manner to customers and the general public, it is entirely reasonable for the employer to ask Kathy to remove her visible piercings, which could include the removal or modification of her tongue piercing. With respect to the tattoos that Kathy claims are religious, it may also be reasonable for the employer to ask her to cover the visible tattoos, which will advance the employer's interest in maintain a professional atmosphere while acknowledging her right to religious expression. Because Kathy said her tattoos were religious, choice a, firing her on the spot, would be risky and open the employer up to a possible discrimination claim. Likewise, choice b is incorrect because ignoring the policy violations means that the employer may not be consistently applying its policy. Choice d is incorrect because removing the policy from the handbook defeats the purpose of implementing the policy in the first place.