Is Your Dress Code Ready for Summer?

It is summertime, and you know what that means – it is the season when your employees bare arms, legs, and maybe more than you want to see. Find out five tips you can you use to get everyone to dress appropriately in the warm weather.

It’s a challenge to enforce appropriate dress codes that allow employees to be comfortable without making your workplace look like a beach party. Fortunately, you have considerable flexibility when it comes to setting your dress code policy. Just make sure you explain it to your employees (to get that “buy in”) and enforce it consistently to prevent potential legal claims.

Dress Code Legal Lessons

It is a surprise to many employers, but discrimination laws generally do not restrict your right to determine appropriate workplace dress. In fact, you have a lot of discretion in setting appearance standards.

For example, you typically may impose rules and guidelines that have a basis in social norms, such as those prohibiting tattoos, body piercing, or earrings for men. While tattoos and piercings may be examples of employee self-expression, they generally are not recognized as indications of religious or racial expression and typically are not protected under federal discrimination laws.

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(Download a free Personal Appearance of Employees model policy including HR best practices and legal background.)

Even if a religious belief regarding body art is assumed, most courts have agreed that the duty to accommodate religious dress issues is fairly limited and often will uphold an employer’s dress code when based on clearly expressed business interests.

For example, in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), the First Circuit addressed whether an employer was required to exempt a cashier from its dress code policy prohibiting facial jewelry (except earrings) and allow her to wear facial piercings as an accommodation. The employee claimed that her religious practice as a member of the Church of Body Modification required she wear the piercings uncovered at all times.

The court accepted that the cashier was protected by Title VII of the Civil Rights Act, without specifically discussing the sincerity of her beliefs, and only ruled on whether her requested exemption from the dress code was an undue hardship. The court found that the exemption would be an undue hardship to the employer because it would “adversely affect the employer’s public image,” and the employer had a legitimate business interest in cultivating a professional image.

However, certain dress and appearance restrictions relating to physical characteristics may be discriminatory if they adversely impact a particular group of employees (such as women, minorities, or disabled individuals) or interfere with employees’ observances of religious practices, such as head coverings. In addition, you may not completely prohibit the wearing of union insignias.

For example, dress codes that have no basis in social customs, that differentiate significantly between men and women, or that impose a greater burden on women usually are not upheld. The Seventh Circuit determined over 25 years ago in Carroll v. Talman Federal Savings & Loan Ass’n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980), that an employer’s policy requiring all female tellers, office workers, and managerial employees to wear a uniform was discriminatory because male employees in the same positions only were required to wear customary business attire.

So, there are some legal constraints you need to consider and, to protect against charges of discrimination, your best bet is to impose only standards that have some legitimate business justification. Still, even with this limitation, you have substantial discretion to set and enforce reasonable dress codes.

Too Much Skin, Tattoos, and Piercings

Even the most casual organizations have expectations that employees will use common sense in choosing business attire. If you are finding the limits of good taste being tested as the result of summer fashions, make sure your dress code policy covers these five points:

1. Prominently state your business justification for the dress code policy. Generally, employers have three business-related reasons for implementing dress codes:

— to present or create a professional or identifiable appearance to customers, suppliers, and the public;
— to promote a positive working environment and limit distractions caused by outrageous, provocative, or inappropriate dress; and
— to ensure safety while working.

2. Make sure you set some parameters defining what is appropriate warm-weather casual attire in order to prevent sloppy appearances. For example, your policies should specify whether “casual” means dress slacks and collared shirts or jeans and T-shirts. In addition, if you don’t want employees to wear shorts, sleeveless shirts, flip flops, or sundresses, include these restrictions in the policy. Further, if your organization does not observe casual dress every day, you should identify which days are designated for casual dress.

3. Address tattoos and body piercings if they are not appropriate for your workplace. Most employers that have policies dealing with these issues limit restrictions to employees who have contact with the public, and only require that the tattoos and piercings not be visible.

4. Identify what standards apply for employees who meet customers or attend outside meetings. Employers often require employees who have regular contact with the public to dress more professionally, particularly if the workplace dress code is casual. So make sure employees know what dress is appropriate for these jobs.

5. Give contact information so employees know where to go for more guidance on what is appropriate dress under your policy. Your HR Manager should be prepared to answer questions about the dress code, as well as determine when violations occur.

(Download a free Personal Appearance of Employees model policy including HR best practices and legal background.)

Consistent Enforcement of Dress Codes Key

Hot weather and summer fashions can test any dress code policy. For some reason, the heat of the season is capable of causing even the most modest and normally well-dressed of employees to push the envelope and come to work in outfits better suited for the beach or a pool party.

So, you need to be prepared to deal with this reality by distributing and explaining your policy to employees and by enforcing it when there are violations. Be very clear about your standards and the consequences of violations. You may not be able to insure good fashion choices, but you can at least get your employees to think twice before wearing flip-flops and cutoffs to work.

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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