Blog Post: Um, Did You REALLY Wear That To Work?: Dress Code Headaches

As a company, you act through the people who represent you – your employees – regulation of employee appearance is typically a matter of business necessity. Traditionally, employers regulated employee appearance through required uniforms and dress code policies. Dress codes provided a laundry list of items of clothing considered appropriate and those that were not. Tube tops and spaghetti straps were relegated to the fashion "don't" category, while suits were elevated to the "do" category. But the advent of "casual Friday" and "business casual" brought with it dress code confusion. The increased popularity of piercings, tattoos, colorful hair dye and more diverse cultural dress has all but made traditional ideas about appropriate dress, and in some instances, dress codes themselves, obsolete. Employers are now faced with previously uncontemplated appearance issues, and taking their dress code policies back to the drawing board.

This challenge – the desire of employees to express themselves through their appearance – leaves human resource directors, business owners and attorneys terrified to put pen to paper. An examination of recent cases validates their fear, and reveals the many ways in which a dress code might make its way to center stage before a jury. Of interest in these cases are both the complaints lodged and the ways that dress codes are used in litigation. Once the areas of risk are identified, and with the legal theories behind them in mind, employers may begin construction or evaluation of a suitable appearance policy.

Dress codes become evidence in lawsuits in several ways - as evidence of discrimination or harassment (i.e. prohibiting employees who hold religious beliefs to wear head coverings, while allowing others to wear baseball hats on game day), stereotype claims (i.e. requiring women to dress in a "feminine" way) and/or as evidence of a disparate impact (i.e. an appearance policy that expressly prohibits dreadlocks, cornrows or other hairstyles that could have a disparate impact on employees of certain races/national origins).

How would your dress code hold up? Can you articulate legitimate business reasons for all of your requirements? Perhaps now would be a good time to take a look at your policy.

This blog post will be the first in a series to explore the do's and don't's of regulating employee appearance.  Future blog posts will address policies that try to regulate: tattoos, piercings, odor, weight, hairstyles, head coverings, "tight" clothes and other aspects of appearance and dress.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.