by Amy Beth Dambeck, Esq.

Most companies and employers impose, whether formally or informally, some sort of dress code policy, and employers generally have the right to establish a dress code policy as a condition of employment. A company dress code can apply to both the office setting and business events that take place outside of the office (business meetings, lunches, functions, etc.). For example, employers may define what formal business attire or business casual dress means for their business. Employers may permit a business casual office, or institute a casual Friday policy –– whether during summer months or otherwise. Further, many employers prohibit employees from wearing flip-flops, shorts, denim, t-shirts, strapless tops or dresses, and other overly casual or revealing attire. Generally speaking, employers may also discipline employees for violating their office or business dress code policies –– including having the employees sent home to change into more appropriate attire. The policies might serve to promote the employer’s specific professional image or brand, the health and safety of the employees or customers, and/or simply convey a clean and professional look that is appropriate for the nature of the job at hand.

However, in establishing, communicating, and/or enforcing any dress code policy, employers must use caution not to violate discrimination laws and the rights of their employees. In exercising such caution, employers must apply a dress code policy and related discipline equally to all employees in the same job classification or group. Employers must also accommodate dress and grooming based on the sincere religious beliefs of their employees, unless doing so would cause an undue hardship –– and employers must exercise significant caution in evaluating whether or not an undue hardship can be said to exist.

A common example of a claim of discrimination associated with dress code policies is one of gender-based discrimination. This risk of liability can be heightened when employers have different dress code policies for each gender, and one or both are perceived by employees of either gender as unfair. For example, a policy may require men to wear a formal suit and tie at all times –– removing their jackets only within their own office. The same policy may permit women to wear dresses, with or without sleeves and without a jacket or sweater. Some men might claim that their mandated attire is overly restrictive, while some women may claim that they are encouraged to dress more provocatively.

Courts have generally upheld employers’ rights to establish gender-differentiated dress codes because men and women have customarily dressed differently. However, employers are not permitted to establish or enforce dress codes in ways that blatantly discriminate based on gender. For example, an employer has the right to require men to wear ties at work, while not requiring women to wear them, too. But a court likely wouldn’t let an employer get away with permitting men to wear shorts in violation of the employer’s dress code policy, while preventing women from (or disciplining women for) wearing them, too. Further, employers need to be careful that their policies do not aim to dictate traditionally “masculine” or “feminine” dress based on gender stereotypes.

Another basis for discrimination is that of religion. While employers may have the right to prohibit employees from displaying body piercings or tattoos as a general proposition, some piercings and tattoos can relate to an employee’s religious beliefs. In such circumstances, employers must tread carefully to avoid applying or enforcing a policy in a discriminatory manner and may need to consider whether or not to accommodate a request to deviate from the policy.

Both employers and employees alike should be aware of their rights and obligations regarding dress code policies and may wish to consult with experienced legal counsel if they have any questions or concerns.

By Amy Beth Dambeck, Attorney at Stark & Stark, P.C. www.stark-stark.com.

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