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 Real Workplace Issues |
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There is no federal law
governing employee
dress codes. Private employers may set whatever
dress guidelines they wish, as long as they do not
discriminate on the basis of race, color, creed,
religion, sex, sexual orientation, age, national origin,
ancestry, disability, marital status, domestic partner
status, veteran status, citizenship, genetic disposition
or any other federally-protected status. Generally, a
carefully drafted dress code that is applied
consistently does not violate discrimination
laws.
In the past ten years, the American
workplace has
adopted a casual dress trend, paving the way for
employee comfort, but at the same time, office
distractions. In a typical casual dress code setting,
clothing is still professional but tends to be less
conservative. Eighty-seven percent of all companies in
the U.S. have adopted "dress down" policies in which
employees can wear some sort of casual clothing on
designated days of the week or month. One third of
companies allow casual clothing every day.
Many "old line corporate"
employers have adopted this
casual trend, including IBM, General Motors, BIC,
PepsiCo and American Express. These companies'
policies support the same idea about casual clothing:
that coming to work dressed comfortably allows freer
movement, promoting greater loyalty and
productivity.
The adoption of the casual dress
trend, however, has
proved to exhibit adverse consequences as well. A
recent law firm survey of 1,000 business managers
across America show that 44 percent of managers
had experienced an increase in tardiness and
absenteeism since implementing a casual dress
code, and 30 percent noted an increase in flirtatious
behavior. Additionally, many employees have a difficult
time determining appropriate business casual attire
while others take advantage of vaguely drafted
policies. For instance, while tanks, mini-skirts and
flip-flops are popular among employees, they are
often unacceptable attire in casual dress
environments.
Many corporate doors that once
closed to employees'
tattoos and piercings are beginning to open as more
employers embrace an increasing number
of "decorated" graduates entering the work force.
According to a recent survey by an outplacement firm,
more than one-third of young people now sport tattoos
and other forms of body art. This does not mean that
employers look favorably upon their open display. In
fact, many employers are opposed to this trend.
Employees in these cases have met with limited
success in trying to establish a connection between
their body art and a protected class, such as religion,
gender or national origin.
In Cloutier v. Costco
Wholesale, 390 F.3d 126
(1st Cir. 2004), the 1st Circuit Court held that a
religious accommodation constitutes an "undue
hardship" and does not need to be met when it would
impose more than a minimal cost upon an employer,
such as lost business. Here, the court reaffirmed the
employer's legitimate business interest in
maintaining a "neat, clean and professional image" by
prohibiting facial or tongue jewelry. Similarly, in
Riggs v. City of Fort Worth, 229 F.Supp.2d 572
(N.D. Tex. 2002), the court upheld an employer's
termination of his employee because of his tattoo,
celebrating his Ku Klux Klan beliefs. The court
found that the employer's accommodation of this
belief constituted an "undue hardship" because it
would offend an employer's workers and make them
feel uncomfortable.
For the most part, employers have
wide discretion
when drafting dress code policies because no federal
dress code guidelines exist and the courts
usually rule on the side of management. It is
important for employers to carefully draft and
consistently enforce their dress codes. Employers
should base these policies on business-related
reasons, including maintaining their organizations'
public image, promoting a productive work
environment or complying with health and safety
standards. Employers should also communicate the
policy to current as well as new employees through
handbooks or memos, and apply the policy uniformly
to all employees. It is significant that employers be
flexible (i.e., recognize that what is appropriate on the
loading dock may not be suitable for an outside
sales person). Finally, it is best to frame your policies
on the conservative side -- it is always easier to relax a
dress code than to tighten it.
Our next issue will continue discussing dress code policy issues, focusing on sex, religion and race discrimination claims and how to avoid them.
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