Instituting a Dress Code That's Legal and Appropriate For Your Workplace

The authority to set dress codes belongs to you. However, employers need to be especially careful that dress code requirements do not run afoul of anti-discrimination laws.

The manner of dress in workplaces can vary from uniforms to suits and everything in between. Especially due to the now accepted casual dress in various types of industries and businesses, including settings that formerly dictated formal business attire, there are standards of appearance business owners want to maintain. This is where a dress code comes in.

Do you need a dress code for your employees? If your employees deal extensively with the public, it may be appropriate to require certain standards of appearance, depending on what kind of business you have. If that's the case, you should probably have some basic rules about what you want employees to wear. You may even require uniforms or similar attire.

On the other hand, if your employees have no contact with the public, perhaps it's okay if they wear casual clothes. But how casual is appropriate? Even with a liberal policy, you may need some simple guidelines. When deciding whether you need a dress code and what that dress code should be, consider the following:

your business's public image
the nature of the work performed by the employees affected by the dress code
safety standards
employee privacy interests
whether a dress code will create morale problems

You will want to select reasonable restrictions and requirements to impose on the dress and appearance of your employees. And whether you want your employees dressing up, down, or somewhere in between, you should consider the legal issues involved when you impose a dress code.

Laws Affecting Dress Codes

While dress codes may seem harmless enough, you need to be especially careful that dress code requirements do not discriminate against members of protected groups, based on federal and state anti-discrimination laws.

Religious discrimination. For employees who contend that their religious beliefs require wearing certain apparel or refraining from wearing certain apparel, you need to:

show business justification for your requirements
reasonably accommodate their religious beliefs
ask the employees to seek an exemption from wearing religious garb while on duty

If an employee is required by safety or health standards to wear a hat during work but because of religious reasons cannot wear a head covering, you could try several approaches.

You could explain to the employee that due to state or federal safety and health laws — which constitute a business reason — the employee cannot continue the job without that hat.

Or, you could ask that the employee go to his or her religious leader and ask for an exemption from the rule barring hats for business purposes.

If, after these efforts have failed, the employee will still not wear the hat, then perhaps you can give the employee something else to do that would not conflict with the his or her religious beliefs. Termination should be a last resort.

Racial discrimination. Certain grooming and dress code requirements can unfairly affect members of certain races. Be sure that your dress code is nondiscriminatory.

No-beard rules have been challenged on the grounds that shaving may precipitate a skin condition more common among black men than white. However, in one case, a court did not have to determine whether an employer had a business reason for the no-beard rule because the employee failed to show that the rule had adverse impact.

Disability discrimination. You must try to reasonably accommodate an employee with a disability that makes it impossible for the employee to conform to the personal appearance standards.

Gender discrimination. You can generally require different grooming standards for women and men as long as the policy does not do any of the following:

inhibit equal access to employment opportunities between men and women
attempt to deny employment to a particular sex
give a significant employment advantage to either sex

If you have a dress code rule that applies to all employees, regardless of gender, it must be enforced consistently for all employees. In one case, female employees were allowed to wear ponytails and earrings while the men were not, even though the company rule banning earrings and ponytails applied to all employees. While an employer can require different grooming standards for men and women, if the rule applies to both genders, the employer must enforce the rule equally. The court found the practice of not enforcing the rule equally to be discriminatory.

Sexual harassment. It is possible that the way in which you communicate your dress code, or violations of it, may constitute hostile environment sexual harassment.

The circulation of a memo among management staff that detailed inappropriate employee attire and named the employees who had worn such clothing, along with the resulting offensive jokes about the memo contents, created an abusive working environment.

Handling Dress Code Violations

Handling dress code violation can be a sensitive issue. Have any complaints alleging an improperly dressed employee directed to you or to an appropriate supervisor. Then take the following steps:

You should then observe the employee. If you find that there is no issue, you should advise the individual who raised the issue that the employee's dress is not inappropriate.
If you feel that there is a problem with the way the employee is dressed, you should address the issue with the employee in private. Don't challenge the employee's taste or fashion sense. Rather, explain what is unacceptable about the employee's attire according to the policy standard and determine whether you want the employee to go home to change clothes. See if there are ways to allow the employee to come into compliance with the dress code without going home. Make it an informative discussion, not a critical one.

If the issue is a T-shirt that has an offensive or inappropriate slogan or picture, the employee could turn the shirt inside out and return to the work site. Or perhaps the employee could wear a sweater or jacket over the T-shirt to cover the offensive slogan or picture.

If the majority of employees can go home, change clothes, and return within a short period of time, the policy should encourage this type of cost-conscious behavior. For the first situation requiring the employee to go home and change, you might want to consider paying normal wages and transportation costs, if any.
If the employee cannot go home and return within a reasonable amount of time, decide whether to send the employee home with or without pay for the remainder of the day or allow that employee to remain at work.
If an employee comes to work improperly dressed several times over a relatively short time frame, consider documenting the behavior and using your internal disciplinary system as you would with any other nonthreatening policy violation.

Creating a Dress Code Policy

As the employer, you have the authority regulate dress in your workplace. While that authority may be limited by law, in most cases the authority to establish or to change required dress is yours. So, if you want to have a written policy on this issue, the following is the information to consider including in your policy:

Address probable areas of conflict and specific problem areas that have or are likely to occur in your particular business.
Emphasize the importance of dress in promoting a positive company image to customers.
Keep up with the times so that your business's view of what is appropriate for business dress stays current.
Identify any exceptions. It may make good business sense to prohibit casual dress when employees meet customers face to face. There may be work areas within your company where the casual day attire must be dressier than in other areas. Carefully itemize the differing requirements to avoid any confusion and explain why there are differences.
Never assume that your definition of terms such as "proper," "pressed," "reserved," and "appropriate" is shared by every individual who works for you.
In the event that you are writing a "dress down" policy or amending your existing dress policy to cover casual dress, stress that a "casual day" or "dress down day" is a benefit, not a right.
If you are introducing "dress down" days or modifying an existing dress policy, set a future date — such as three months later — to review the policy to determine if you are going to continue the practice.
If employees consistently have trouble determining the appropriate dress and they are in positions where they deal with the public, you may want to provide them with uniforms.

In addition, the following is a list of some specific fashion-type of problems that you may wish to address in your dress code:

Slogans or pictures on T-shirts. Certainly profanity and nude or semi-nude pictures printed on shirts are inappropriate attire in most workplaces and should be prohibited. Also consider whether political slogans, advertisements for products (which may include your competitors'), or suggestive cartoons or drawings are inappropriate for your work site and should be prohibited.
Torn pants or jeans. While this style of clothing may be fashionable among some, to many others, tears in clothing are unacceptable attire and are inappropriate in most workplaces. Does your policy distinguish between this fashion trend and acceptable casual pants and jeans?
Extremely baggy shorts or pants. Also consider what to do if underwear is showing above baggy pants as is currently fashionable in some areas. Does your policy specify how these situations will be handled as well as prohibit this style of dress?
Jeans, jogging suits, or sweatsuits. For many companies, dress down attire does not include the most casual attire that is available. If your business is one for which "casual dress" means no tie and a sports coat instead of a three-piece dress suit and wingtips, you must make that distinction clear. Does your policy clearly describe what "casual" is and when it is unacceptable?
Revealing attire. Clothes such as shorts, crop tops, tank tops, and clothes made of see-through materials or clothes that expose areas of the body usually covered in the workplace are more popular during the summer months. Is this attire prohibited?
Undergarments. If the observable lack of undergarments would be an issue, specify that proper undergarments are required. Although this is a sensitive issue, it is much easier to address it in a policy than to have to debate whether or not someone's attire is inappropriate or disruptive.
Loose footwear such as flip-flops. In some workplaces, a loose shoe may pose a safety hazard. Platform shoes may also pose a safety risk. Investigate any safety prohibitions and determine whether this type of footwear is permitted according to the dress policy.
Hosiery. In some work sites, proper footwear always includes socks or other hosiery. Other workplaces may require socks for health or safety reasons. Be sure a hosiery requirement does not interfere or conflict with safety requirements.
Hats or baseball caps. In addition to writing on hats and caps that may be objectionable, consider whether a hat could be a hazard as well.
Gang attire. Some street gangs have specific symbols, phrases, or insignias that are worn by members, while other gangs rely on specific colors as a part of their regalia. You may want to consider prohibiting gang insignias since they may create problems between employees and between employees and customers.