September 4, 2010 | HR Compliance | Posted by Ascentis Thought Leadership
Is It Time to Give your Dress Code Policy a Makeover?
Why Have a Dress Code
First, let me state unequivocally that you are in no way legally required to have an established dress code. With that said, every employer should have one. Why? For a host of reasons. First, to set a visual standard that matches a business’s culture. Because to be a successful business, no matter what that business is, staff members need to exhibit the spirit of the brand – whatever that looks like. Does your company want its customers to think of it as an easy-going, relaxed brand? Then it’s safe for your dress code to reflect that. Do your customers see you as a professional? Then your dress code must reflect a position that staff members must dress and groom themselves in a way confirms your customer’s beliefs. Your employees represent you. You need to determine how you want to be represented.
Another import reason why you should have a dress code - Safety.
Keeping Employees Safe
If your business has employees working in an industrial, manufacturing, warehousing or construction setting, you’ll be more than likely working with a union representative to reach an agreement on all employment related policies, including dress code. For these employees a dress code is absolutely critical in minimizing accidents and possible subsequent injury claims. For these types of workers a dress code must be designed to meet OSHA and L&I standards for the employee’s safety. It has little to do with the brand, or customer interaction, or how the employee looks, and everything to do with keeping him or her safe.
Can you legally set different standards based on an employee’s gender?
Who’s literally wearing the pants in your office, anyway? No, really. Who is wearing them? Do you only let the men wear those comfortable two-legged trousers, while the ladies in your office wear skirts and the dreaded nude hosiery? Legally, can you tell your employees that one gender can wear something that the other cannot – or, the flip side – can you require that one gender wear something specific that the other gender cannot? The EEOC and courts have held that to in order to create a professional environment, employers can make this distinction. However, employers must be very careful in the wording of the dress code, and extremely careful in imposing undue burdens. The EEOC has established a simple litmus test for gender based dress codes: If a dress code is not based on “social norms”, bears a tremendous difference between the genders (i.e. men being allowed to wear khakis and polos while women must be in skirts, blouses, hosiery, accessorized and cosmetized), or imposes a greater burden on women, then the dress code is suspect and you could potentially be facing a discrimination suit.
In this article posted on PlantServices.Com, an unidentified company finds itself being sued for discrimination when it enforces a dress code policy that clearly imposes a greater burden on women.
But Is It Legal?
When a dress code conforms to social norms, and that social norm is applied equally to both men and women, then usually there is no discrimination. However, there can be substantial difficulty in determining a “social norm” as it could be considered very subjective. Therefore, to be most careful, there should be some level of justification for any specific aspect of a dress code in order to avoid potential discrimination claims.
Discrimination claims will arise eventually. Yes, even at the happiest place on earth.
Just last month, a discrimination case against Disney hit the news. In this case, Disney would not allow theme park waitress, Imane Boudlalm, to wear her hijab (a Muslim headscarf) in front of customers during Ramadan (or even before Ramadan for that matter - for more info jump ahead and click the link). When she appeared at work wearing the headscarf she was told to either remove it or go home – when she refused, she was sent home. The following two days, she came to work again, wearing the hijab, and twice again was sent home. See the particulars of the story here.
The issue of religious discrimination can be particular upsetting. Therefore a reasonable and fair approach, developed in advance, should be the best practice for any corporate structure. Again, the ideal situation is being prepared in advance. Make sure your dress code is as specific as possible and offers justification for any specific reason that a particular article of clothing/accessory or style of dress would be disallowed or absolutely required.
Even in the best of circumstances, there will always be some type of dress code issue that you may not have been prepared for. When that situation arises do your best to deal with it swiftly and sensitively as to not fan the fire of a potential discrimination claim.
Discrimination claims can be related to race, gender, religion or sexual orientation. Although an employer can create a policy covering every last one of those options the smartest route is to consult with an employment attorney just to be sure you’ve done your due diligence and not put in writing a policy that, in and of itself, would not be considered discriminatory and does not impose an undue burden.
Employees breaking the rules anyway?
There will come a time when an employee accidentally or even blatantly disregards a dress code. What do you do then? Quietly take your employee aside and explain your concern, including the reason for your concern. Ask them if they were aware of the policy. If their answer is yes, it’s time to explore their reason for violating it – this is where many discrimination lawsuits could be stopped before they begin. If and when this happens, it’s time to explore if there is real justification for your policy and to make, at the very least, temporary accommodations.
If a violation stems from no apparent discriminatory reason, the employee should be taken through the disciplinary procedures set forth in your policy manual and, if necessary, be fired for insubordination.
Remember, your employees are the face of your brand and it’s important they represent you in the way that best matches your company culture. If you’re a young company, and just starting out, it’s imperative that you invest in well written policy manual – just make sure it’s up to date with current compliance and discrimination laws. And if your company has been around for a while, maybe it's time to revisit all your policies and see which ones no longer fit the "social norm". For help writing, or re-writing, your policy manual, finding an employment law attorney , or to read a good example of what NOT to say to your employees, click some of the links at the end of this below.
Find an employment law attorney using LegalMatch.com.
HRGuide.com offers some great sample policy samples.
Have you been charged with discrimination by the EEOC? Here’s the next step.
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