(This blog is the third installment in a multi-part series regarding privacy in the workplace.)
Employee dress codes and policies can be an important way to ensure that employees properly represent the company’s image and do not offend customers or the general public. Dress codes may also promote safety in the workplace (for example, no jewelry or closed-toed shoes only, etc.). Such policies can also impact workplace culture: a relaxed dress code may lead to increased collaboration and camaraderie, whereas a code requiring business formal may increase professionalism and decorum.
Company dress codes can range from describing a general appearance policy (“casual/business casual/smart casual attire;” or “well-groomed and wear clean clothing, free of holes, tears, or other signs of wear”) to spelling out the specific attire an employee is required to wear (a uniform or similar clothing, such as black pants and white shirts).
No matter the policy, however, employers should be careful not to enforce the policy in a discriminatory manner. Employers may be liable for appearance policies that potentially discriminate against a protected class (whether explicitly or as a disparate impact). Requiring all employees to shave, have short hair, or have no tattoos/piercings could potentially infringe on an employee’s bona fide religious beliefs. Likewise, a policy for a stiff uniform could discriminate against someone who is confined to a wheelchair, constituting disability discrimination.
Consequently, if an employer chooses to have a dress code, they need to be prepared when employees request exemptions from such policy. Generally, the employer only has an obligation to attempt to accommodate such a request when the request is based on an employee’s protected status (age, race, gender, disability, religion, etc.). An employer must accommodate the request so long as doing so does not create an “undue hardship.”
As a general rule, it is not legal to have dress codes for only one sex, but not the other. Employers may have different dress codes for women and men, as long as such policies do not put an unfair burden on one gender over the other. Employers should avoid relying on a breach of dress code as the sole basis for disciplining an employee unless they have attempted in good faith to accommodate the employee’s request and can show an undue burden.