September 21, 2015

What Not to Wear, Workplace Edition

this tattooed, bearded hipster is a walking dress code violationDo you forbid your team to wear blue jeans while at work? What about blue fingernails…or blue hair?

Or maybe you have policies that discuss tattoos, piercings, jewelry, or headwear.

As anyone who has ever managed a team of employees knows, getting everyone to conform to the desired “look” of your business can be tough, especially if there isn’t a consistent policy on what that look is. Establishing a dress code policy offers the opportunity to spell out what your employees must do—and what they may NOT do—in order to look professional in your office.

But be careful: Dress code policies hide DANGERS for unwary employers.

Employer preferences as to what constitutes a professional appearance tend to vary based on geographic location and patient base. For example, the acceptance of tattoos is generally greater in more urban areas with a younger average client base, while employers in more rural areas tend to restrict their visibility. Whether your dress restrictions will discourage or eliminate otherwise qualified potential or current employees is something to consider when deciding on the policy.

The business needs of your practice will dictate many of your choices, but there’s underlying risk here. Specifically, the threat of legal action arises when dress codes are used either overtly or unintentionally to discriminate against someone based on a protected characteristic.

Avoiding Discrimination or Disparate Impact

It’s easy to think of examples of how this could happen. Say a person has a tattoo, or must wear a particular type of head covering because of their religion, but the dress policy does not allow tattoos, or any type of headwear. The business’s dress code restrictions could seem safe and evenly applied until this situation arises, but their actual impact could fall squarely on the shoulders of a religious or ethnic minority, which can cause a major problem.

Another example of a no-no policy would be to forbid jet-black hair. While the employer’s intent may be simply to avoid the “goth” look,” a practice that enacted such a restriction would be eliminating the natural hair color for several ethnic or race origins!

The bottom line is that your dress code policy must be mindful to avoid having a disparate, discriminatory impact. Elsewhere, your employee handbook should state that your company is an equal opportunity employer, with no intent to discriminate, and should outline the way in which any employee may bring a question or concern about discrimination to your attention.

What if an Employee Requests a Religious Accommodation?

In addition to ensuring that your policy does not include language likely to have a discriminatory or disparate impact, keep in mind that employers are required to accommodate the right of religious employees to wear religion-required clothes, tattoos, or headwear, as long as it does not create an undue hardship. Undue hardship is generally considered to be a “significant difficulty or expense,” relying on objective information rather than perceptions.

If you receive a request for a religious accommodation, consider it carefully. Religious discrimination claims have risen drastically over the past decade, and many lawsuits begin as disputes over a dress code exception. If you’re wondering if it’s safe to refuse an accommodation request, or not sure what’s required of you, it’s best to seek expert guidance.

Call CEDR at 866-414-6056 if you need help evaluating an accommodation request. As an Employer Solution Series Member, we’ll help you solve one issue for free!

A Better Dress Code Policy

The best dress code policy is specific enough to address common problems (e.g., “no blue jeans,” “skirts and dresses must be knee-length”), but broad enough to allow for at least some personal expression. At the same time, it needs to give management the discretion, as needed, to address individual variances.

When used in combination with more specific rules, your policy can also include a statement that employees are expected to dress tastefully and professionally. Though obviously broad and subject to interpretation, this provides an overall guideline, and allows you the ability to use your discretion if an employee shows up sporting a style you may not have specifically addressed, but which is unacceptable (e.g., the aforementioned blue hair, four-inch fingernails, or a Mohawk).

Your dress code policy is also the proper place to address any safety requirements that apply in your office or practice, such as the need for closed-toe shoes, a restriction against false fingernails for hygiene reasons, or jewelry limitations that are safety-based.

The key aspect of any policy is its enforceability. To avoid discrimination claims, dress code policies need to be enforced evenly. If you permit one employee to come in without a clean, pressed, or polished look, be prepared to allow it for everyone.

In Your Office…

As with any other policy in your office, creating and implementing new dress code requirements is best done with the help of an HR expert and should be part of a comprehensive, legally compliant and up-to-date employee handbook.

Here at the CEDR Solution Center, we would be happy to talk with you about strengthening your dress code policy while making sure that its language and impact are nondiscriminatory. Just give us a call at 866-414-6056, or email info@cedrsolutions.com.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.