Dec 17, 2018

What Not to Wear

By: Allison Mann

A company’s employee dress code can say a lot about the company itself. It gives information about a company’s professionalism, its values, and its culture. Long story short—first impressions matter. Your potential clients will judge an employee, and through the employee the company, based upon the way the employee is dressed. Thus, it is apparent that companies have a vested interest in ensuring that their employees are dressed appropriately. Most companies achieve this by implementing and enforcing a dress code policy.

These policies come in many shapes and sizes. An example from one end of the spectrum comes from General Motors. The company’s CEO, Mary Barra, recently implemented a new, two-word policy: “Dress appropriately.” It is her position that she empowers her employees to define the policy, which exemplifies her trust in them and promotes a positive work culture. On the other side of the spectrum, you have companies that provide a rigid framework for the type of clothes their employees can wear. These companies may mandate a casual, business causal, or business formal dress code, provide even more explicit instructions, or even have a strict uniform.

The Legal Perspective:

An employer is generally free to enforce a dress code. However, certain limits on this ability exist.

First, when an employer seeks to regulate an employee’s appearance based on a protected category. This includes characteristics such as disability, gender, gender identification, race, and religion. Employer appearance policies should generally be neutral, adopted for nondiscriminatory reasons, and consistently applied to all persons. Any dress code provision that directly impacts a protected characteristic must be job related and consistent with a business necessity.

Second, an employer should be careful to avoid restricting an employee’s rights under the National Labor Relations Act. An employer generally may not restrict an employee’s right to participate in union activity, including wearing buttons, pins, or other union insignia. An exception exists where the employer can demonstrate that the policy against such items relates to a legitimate business reason, as mentioned above. For example, where a safety issue may result with the addition of a pin or button to a uniform.

These are just two concerns. There may be other issues to consider based on particular circumstances.

The Takeaway:

Determine the dress code policy that best suits your company, whether it is a simple policy such as dress appropriately, or contains more stringent standards. Whatever policy is adopted, ensure that it is clear and specific. However, some room should be left to the discretion of the manager to account for needed accommodation. Then, if the need for accommodation does arise, a specific factual analysis should be done. Each case must be evaluated individually, with consideration to the law in the jurisdiction of the employer, and, when necessary, discussed with a knowledgeable attorney.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the December, 2018 Southwest Area Human Resource Association newsletter.