Dress for Success … for Managers


New Jersey Law Journal

May 6, 2019

Safety, professionalism, branding, image—these and many other factors contribute to employee dress code, appearance, grooming and hygiene policies. Many of these policies are informed by the legitimate business needs of a specific workplace and the various positions in that workplace. Some are a function of a desired corporate image or branding, including uniformity in appearance. Regardless of the rationale, policies governing employee dress, appearance, grooming and hygiene (“dress codes”) largely provide some standards and guidance.

For example, dress codes often use broad terms such as “corporate,” “professional,” and “business casual.” While these describe a broad goal, they are clearly subject to interpretation. Similarly, words like “neat” and “well-groomed” are also common, if subjective. And while examples of appropriate dress are frequently relegated to a long, somewhat helpful list of what to wear and what not to wear, they are rarely (but should be) stated in a gender neutral manner. It is moreover obvious, and discernible from a stroll through any workplace, that not all employees have the same reference point for even basic terminology. At a minimum, thus, effective and legally compliant dress codes should not only be descriptive and include gender neutral examples, but also provide employees with a name or department to contact with questions about the policy or in the event an exception or accommodation is needed. Employers should furthermore establish and implement a process for documenting and responding to requests to accommodate dress code exceptions, so as to permit consistency in similar requests and help establish a defense to any legal claim arising from an asserted violation of rights.

But even assuming a company dress code and practice is in itself compliant with applicable law, affording appropriate flexibility and opportunity for requests to accommodate, the reality is that at most companies, formality is lost in the day-to-day work rush. Managers and supervisors are not only the point people for employee questions, regardless of the employee identified as the contact person, but are also charged with enforcing company policy. These front-line employees are the company representatives who will not only likely receive a request for accommodation or exception but may have sufficient familiarity with employees to understand the basis for noncompliant attire or grooming, and thus will be in the best position to identify the need for an interactive process with the employee. Their understanding and education as to company dress codes and the parameters and landmines inherent in our fair employment laws is thus essential.

To that end, training company managers and supervisors is a key element of any employer dress code compliance and enforcement effort. Managers and supervisors should be armed with an understanding of not only the parameters of dress codes but also the legal obligations under fair employment practice laws, including the duty to accommodate religion and disability, the proper responses to employee requests for accommodation, and the obligation to consider other exceptions that may be warranted under law. The opportunity to train these employees can arise on various occasions, but is a natural fit for a manager and supervisor EEO/Prevention of Discrimination and Harassment session, where managers and supervisors are afforded an opportunity to delve more deeply into not only the laws and company policy, but also the practical impact on the workplace and their own roles.

The following are just a few topics that your managers should understand in the context of attire and appearance policies.

Gender, Gender Identity and Expression Protections
Under Title VII of the Civil Rights Act of 1964, discrimination on the basis of sex is prohibited. Federal law thus includes in sex-based discrimination any discrimination based on transgender status or atypical gender expression. Many state and city fair employment practice laws also protect gender identity and expression. A policy or enforcement of a policy that distinguishes between genders, imposes a greater burden on one gender, or does not permit gender expression, could violate one of these laws. For example, employers maintaining or attempting to enforce a dress code that is gender based, such as allowing skirts and dresses for only female employees, could violate the gender expression of a male transitioning to female. Managers and supervisors must understand the idea of gender identity and expression, and how such expression may be reflected in employee dress, including in gender nonconforming dress. They should be trained on discrimination as well as bias, specifically implicit and unconscious bias, in the context of gender and gender identity and expression, so as to increase awareness of the risks of sex stereotyping.

Religious Accommodation
Also under Title VII, federal law prohibits discrimination on the basis of religion and requires employers to provide reasonable accommodation of religious beliefs, unless such accommodation would pose an undue hardship on the employer. Many state and city fair employment practice laws impose similar obligations. Managers and supervisors should be briefed on the possible religious expressions or requirements, such as beards, head coverings and even tattoos, that might need accommodation in their workplaces. Summer dress codes or uniforms consisting of short sleeves and shorts may step over religious barriers. Similarly, hygiene standards may be informed by religion, and managers and supervisors should be sensitive to those differences among religions. And even safety equipment, such as masks with seals, may need to be considered and modified in light of religiously required facial hair.

Disability Accommodation
Under the Americans with Disabilities Act and many parallel state fair-employment laws, employers must reasonably accommodate a disability of a qualified applicant or employee, subject to certain exceptions such as undue hardship. Managers and supervisors, who are likely familiar with physical workplace accommodations, should understand that certain dress or grooming requirements, such as work uniforms with buttons or lace-up shoes or even short sleeved uniforms, may also be implicated as the result of an employee’s disability.

Race Discrimination and Grooming Rights Laws
While the recent New York City Commission on Human Rights guidelines have made headlines for their specificity with regard to discrimination based on hair, sweeping in not only race, religion, disability, age and gender as potentially implicated by hairstyles, inconsistent enforcement of appearance policies concerning hair has previously been pled in the race discrimination context in other jurisdictions. The focus on the racial or ethnic identity impacted or targeted by a prohibition or enforcement of a policy can certainly be directly linked to a hairstyle or grooming limitation. Managers and supervisors must, at a minimum, obtain understanding of their employees’ potential expression of racial or ethnic identity, regardless of whether such expression is mutable.

National Origin Protections
Finally, dress and hygiene standards may be in part informed by national origin and culture. Depending on a company’s workforce demographics and policy requirements, managers and supervisors may also require training on cultural competency to aid in lawful application of policies without bias toward certain groups.

Many managers and supervisors have not been trained to consider these subjects in their perhaps rote enforcement of a dress code. In addition to discussing employee rights under the various laws, effective training should include visual examples of dress and grooming requirements as well as examples of noncompliant dress and grooming that are consistent with nonconforming gender, religious beliefs, or racial identity, among others. An acknowledgment of the possibility of dislike for, or lack of understanding about, certain forms of expression will create an atmosphere of trust and open the forum for questions and answers, including the possibility of a discussion about specific employee concerns and challenges.

While an entire session devoted to a company dress code may yield some raised eyebrows, and even a discussion of dress and grooming in the midst of discrimination and harassment may seem like a detour, the focus will yield a practical result in terms of educated manager and supervisory ranks that are armed with the tools to assist in enforcement with fewer legal challenges.

Reprinted with permission from the May 6, 2019 issue of the New Jersey Law Journal. © 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.