Overview: Employers may want to consider developing and implementing a dress code policy in the workplace to address what type of clothing employees are permitted to wear for work and to convey the employer's expectations as to what type of image it hopes to project to the public. The dress code should be communicated to all employees and the employer should provide training on the policy. Additionally, employers may also want to introduce policies related to employee grooming, personal appearance and hygiene including the wearing of tattoos, jewelry, hairstyles and facial hair. In creating any dress code or appearance policy, employers should be mindful of the specific needs of the job and the business as well as safety and health considerations. For example, an office dress code may be different from the dress code on the factory floor. Employers should also have a strategy in place for handling dress code violations.
Trends: An employer may be obligated under Title VII as well as other federal, state and local antidiscrimination laws to make reasonable accommodations in its dress code policy for an employee in a protected class. For example, an employer may have to accommodate the request of a Sikh employee to wear a turban to work even if hats are generally not permitted by the office dress code. Further, employers may want to consider implementing different dress codes depending on the seasons. For example, it may be more comfortable to permit employees to wear more casual and relaxed clothing such as work appropriate sundresses and golf shirts rather than more formal business attire during the summer months.
Beth P. Zoller, J.D., Legal Editor
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While it is generally lawful for an employer to develop and implement dress codes and uniform policies, the employer must be mindful of employees' right to practice their religion and wear clothing that comports with their religious beliefs and practices, or else it may face a religious discrimination claim. In Equal Employment Opportunity Commission v. Fries Restaurant Management, LLC d/b/a Burger King, Fries Restaurant Management (Fries) agreed to pay $25,000 to a teen employee who was asked to leave work because she wore a skirt instead of the required uniform of black pants.
The District of Columbia Circuit Court of Appeals overturned an NLRB decision holding that Medco committed an unfair labor practice and violated Section 7 by requiring an employee to remove his t-shirt with a message mocking the employer's employee recognition program and by banning insulting, provocative and confrontational expressions on clothing. The court sent the case back to the NLRB because it had failed to show that the clothing ban was instituted in response to union activity or that a reasonable employee could construe the rule as prohibiting protected activity.
Courts and administrative agencies are reinterpreting federal and state antidiscrimination laws, and many state laws and municipal ordinances have been amended as providing employment-related protection for transgender individuals. These changes have a significant impact on employers' obligations to their employees, and opens the door for increased exposure and liability for those employers who do not incorporate this into their EEO policies and procedures.
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