DRESS CODES DO'S AND DON’TS

By Beth Milito
NFIB Small Business Legal Center

Ah, summer time. Think warm sunny days, family vacations at the beach and comfy casual clothes. Unfortunately, the warm days of summer can wreak havoc on your company's dress code. Ensuring that employees are appropriately attired can be tricky enough without throwing today's casual wear of tank tops and flip flops into the mix. As summer is over and the new year is upon us, now is probably a good time to implement or review your company's dress code.

You, naturally, want your employees' appearances to reflect positively on your business. But you must also consider employees' rights. To establish a dress code that steers clear of discrimination remember these three things: • communicate openly,

• think about your bottom line, and
  
  
  
• be reasonable.

Be reasonable You will have to navigate between what you want, what the law allows and what employees are willing to do. Let the law temper your policy to avoid discrimination claims.

Discrimination based on sex.

Courts usually side with the employer when the difference in dress by sex is based on social mores. This means an employee could win a lawsuit if your company's sex differentiated policy is not based on a common social custom. For example, the requirement that men keep hair trimmed short while allowing women to wear long hair would not establish sex discrimination. But, if your policy demands that women wear only red while men can wear any color they want, a female employee may have a legitimate sex discrimination claim. Also, some state and local laws protect the right of women to wear the same outfit as men. For example, in California you may not prohibit women from wearing pants.

Discrimination based on race.

It is very tough for an employee to prove that a dress code policy had an impact against her racial or ethnic group. However, one of the few situations where courts have sided with the employee has been regarding no beard rules. In the limited situation where an employee is unable to shave due to pseudofolliculitis barbae it may be unlawful for you to require shaving. This is because pseudofolliculitis barbae uniquely afflicts African American males.

Discrimination based on religion.

This is the area that has potential to really test an employer's sensibilities. The courts look favorably upon religious discrimination claims where the employer has not been reasonable. Two common religious claims relate to the religious need to keep the head covered and the growing of a beard. Your employee will likely win barring proof that a religious accommodation would create "undue hardship" on your business. So, if a beard must be worn and you want to project a business image of clean cut employees you had better be prepared to find an equally good position outside the customer's sight for the religiously bearded. On the other hand, if you run a factory and an employee head scarf could reasonably get caught in a machine and thus be a safety hazard you may have a legitimate claim of undue hardship if similar machines are involved in all positions.

Tattoos and body piercings.

While some employees might feel that tattoos and body piercings are protected self expression they are not. Employers have broad authority to require the covering of tattoos and body piercing in the workplace.

Anti-union rules.

Under the National Labor Relations Act, you may not specifically forbid the wearing of union pins, buttons or T-shirts with union insignia, even in a non-union shop. You may, however, forbid these items as part of a non-specific ban on pins and buttons, or as part of a ban on items of clothing on which a union insignia might appear, such as a T-shirt. Communicate openly Rather than getting into too many specifics you may want to consider a broad policy such as the following:

"An employee's personal appearance and hygiene is a reflection on the company's character. Employees are expected to dress appropriately for their individual work responsibilities and position."

Do not "hide the ball" from your employees. Make sure the dress code policy is communicated directly to employees early and often. The best way to do this is to make it a part of a written document such as an employee handbook or a prominently displayed poster. That way your rules are available for all employees to see, and can be introduced as evidence in case of litigation. The last thing you want is to surprise an employee with a hidden policy. When you interview new job candidates be sure to let them know about your dress code. Enforce the policy consistently. If you let the policy slide and then bring it out after your employee upsets you in an unrelated matter you will only gain the reputation as a boss who does not deal fairly.

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