For many companies, corporate dress codes have remained stagnant and unchanged for years.  This frequently creates conflict in the workplace because younger generations of employees don’t understand why they can’t show tattoos, can’t wear jeans and can’t show up to work with an eyebrow ring. And truthfully, does the company really want to lose a top-notch job candidate simply because he has a visible tattoo that he’s unwilling to cover?

 

The challenge for employers is to balance the safety and professional needs of the business with the changing perception…and legal requirements...of what dress codes should be.

 

Here are 5 key things to think about as you review…and hopefully update…your dress code policies:

 

Does it make sense for us to require all employees to wear business attire? Unless your employees are meeting with customers, it’s likely that more relaxed attire (such as khakis and polo shirts or jeans and a nice t-shirt) could suffice for most of your staff.  This doesn’t mean that torn jeans, tank tops, flip-flops and the like are acceptable.  However, is it really necessary for your Network Administrator to wear a business suit and tie?
Are there safety issues that have to be considered when drafting our policy?  For employees working in an office environment, sandals, high heels and perhaps even sneakers may be okay. However, if your employees work in a manufacturing or construction environment, perhaps they should be required to wear closed toe shoes…or perhaps even steel-toed shoes depending on the circumstances.  Employees working outside in the sun may be asked to wear long sleeved cotton shirts in order to avoid sunburn and to help the body keep cool.
Similarly, your policy regarding hair and jewelry should be crafted with safety in mind.  Employees serving food can be required to keep long hair tied back.  Also, employees working around machinery may not be permitted to wear rings or necklaces for fear of those items catching on the machinery and harming the individual.

 

Are there legal considerations we need to be aware of when updating our policy?  Recently the National Labor Relations Board (NLRB) has weighed in on the issue dress codes:
·      Boch Honda, a Massachusetts car dealership, was faulted by the NLRB for having a dress code it deemed to be overly broad.  The dealership’s policy stated “Employees who have contact with the public may not wear pins, insignias or other message clothing.” Boch Honda’s unionized employees claimed policy was too broad and violated their right to engage in protected concerted activity under the National Labor Relations Act (NLRA).  The NLRB agreed in a 2-1 ruling and reasoned that under the NLRA both union and nonunion workers have the right to display union messaging and insignia in the workplace and that Boch's policy could be interpreted as a ban on these kinds of displays. Because of this ruling, it is important that all employers avoid using overly broad language in their dress codes, which could indicate that union-related messaging and insignia are unacceptable.

 

Over the years, the Equal Employment Opportunity Commission (EEOC) has weighed in on the topic of overly-restrictive dress codes as follows:

·      “A dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin. An employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers' ethnic beliefs or practices. However, if the dress code conflicts with religious practices, the employer must modify the dress code unless doing so would result in undue hardship.” (http://www.eeoc.gov/policy/docs/qanda-nationalorigin.html); AND

 

·      “Appearance standards generally must be neutral, adopted for nondiscriminatory reasons, consistently applied to persons of all racial and ethnic groups, and, if the standard has a disparate impact, it must be job-related and consistent with business necessity.(151) The following are examples of areas in which appearance standards may implicate Title VII’s prohibition against race discrimination:

 

Height and Weight: Standards for height and weight sometimes are challenged as having an unlawful adverse impact. For example, a requirement that employees be at least six feet tall might have an adverse impact on Asian Americans due to average height and weight differences, and thus such a requirement would need to be job-related and consistent with business necessity.(152)
Dress: An employer can impose the same dress code on all workers in similar jobs, regardless of their race or ethnicity, as long as the policy was not adopted for discriminatory reasons and is enforced evenhandedly. However, an employer must treat racial or ethnic attire that complies with the dress code the same as other attire that complies with the dress code.(153) For example, Title VII prohibits employers from banning the wearing of traditional Hawaiian dress that complies with the employer’s dress code requirements.
Hair: Employers can impose neutral hairstyle rules – e.g., that hair be neat, clean, and well-groomed – as long as the rules respect racial differences in hair textures and are applied evenhandedly. For example, Title VII prohibits employers from preventing African American women from wearing their hair in a natural, unpermed “afro” style that complies with the neutral hairstyle rule. Title VII also prohibits employers from applying neutral hairstyle rules more restrictively to hairstyles worn by African Americans.(154)
Beards: Employers generally can require employees to be clean-shaven. However, Title VII requires an employer to make exceptions to a no-beard policy for men with pseudofolliculitis barbae, an inflammatory skin condition that occurs primarily in Black men and that is caused by shaving, unless being clean-shaven is job-related and consistent with business necessity” (http://www.eeoc.gov/policy/docs/race-color.html#VIIB5)
·      The EEOC also does not approve of policies that are more stringent for females than it is for males.  It is better to have a neutral policy that encompasses employees as a whole rather than identifying what’s okay for men to wear versus what’s okay for women to wear.  And in this day and age when transgender rights are becoming the norm, your policy should also avoid the appearance of discriminating based on sexual stereotypes. However, it’s still okay to state that skirts can’t be more than two inches above the knee and that low cut and/or halter style tops are unacceptable.

 

Are tattoos and extreme hair styles really that offensive? We can’t always know how our customers will react to someone who has a streak of bright blue in their hair or a tattoo on their right forearm.  You have to evaluate your own work environment and the clientele you serve in order to determine whether or not someone who has an extreme hairstyle or tattoos will adversely affect your business.
Being flexible doesn’t mean we don’t have standards. As mentioned previously, the company does not have to permit employees to wear clothes that are torn, are too short/revealing, or that have offensive sayings on them that could be construed as discriminatory or harassing. And good hygiene never goes out of style.  We can require employees to wear clothes that are clean and well-maintained.  Similarly, we can require that employees themselves come to work clean and well groomed and that facial hair be kept trimmed.
A dress code that has been revised to reflect your current business culture will provide clear guidance for current employees and can give you a competitive advantage and set you apart from your competitors when attracting new employees to your organization.

 

Contributed by Christine Crews, SPHR, SHRM-SCP is Vice President of Human Resource Services for the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development. HCCMO members receive discounted rates on all EAF classroom training at EAF’s training center in Longwood. Click here for currently scheduled programs: http://www.eafinc.org/online_store/training/HCCMO/training_programs.pdf.

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