Every employer wants its employees to make a great first impression on clients and customers, promote an atmosphere of respect and professionalism in the workplace, and cultivate a general reputation of strong values and trustworthiness. One way employers approach this goal is to implement a dress code, or policy regarding dress and grooming. But employers should be aware of the pitfalls and practicality of implementing these types of policies.
The most important consideration in implementing a dress code is to make the dress code gender-neutral. Federal law prohibits discriminating against individuals on the basis of sex or gender identity, which includes an individual’s identification as transgender. A gender neutral dress codes eliminates the “men” and “women” sections of your policy on acceptable attire and sets a standard for all employees, regardless of biological sex or gender identity. A policy requiring that all employees with hair below collar length must tie back or restrain their hair at work is gender neutral. A policy which states that male employees may not have hair longer than collar length is discriminatory and could create liability.
An employer in British Columbia is currently facing a Human Rights Tribunal complaint for terminating a female employee for refusing to wear a bra or tank top under her uniform. The employer’s policy required only women to wear bras or tank tops under their uniforms. A gender neutral policy would have required all employees to wear either a bra, tank top, or undershirt under their uniforms. The gender neutral policy would have achieved the same objective and would have saved the employer the financial penalties and legal hassle it is currently facing.
Employers should also be prepared to make accommodations for employees whose religious beliefs prevent them from adhering to the dress code. Employees whose religion dictates should be permitted to wear long skirts, long sleeves, or head coverings, for example, unless there is a bona fide safety issue that would prevent this. Employers should also not require an employee to be clean shaven if this contradicts the employee’s religious beliefs. EEOC complaints based on religious discrimination have doubled over the last 20 years and continue to rise as the country’s workforce becomes more diverse.
Finally, what to do about tattoos? Twenty-nine percent of Americans have at least one tattoo, and nearly half of Millennials and over a third of Gen Xers are tattooed. Not all of these individuals’ tattoos are visible when appropriately clothed, but as the tattoo trend becomes more mainstream, employers with a blanket ban on all visible tattoos may be excluding valuable candidates from their hiring pool. Whatever policy an employer enacts regarding tattoos, it is critical to make the policy clear and enforce it uniformly to avoid discrimination or a disparate impact based on protected class status. Employers who choose not to ban visible tattoos should be sensitive regarding tattoos that other employees may find harassing or discriminatory, such as tattoos with sexual imagery or representing hatred toward another race or religion, to prevent claims of harassment or discrimination from coworkers, clients, and customers.
Employee dress codes can be essential for your workforce, but can also be tricky to implement. Consult with myHRcounsel’s licensed employment attorneys to ensure that your dress code is both appropriate for your business needs and legally compliant.
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