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It’s Time to Reassess Problematic Workplace Dress Codes

Tips for updating your employee handbook


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In the wake of the #MeToo movement and with workplace harassment taking center stage, companies need to be cognizant of workplace guidelines that could be viewed as problematic and discriminatory, such as workplace dress codes.

Dress code and grooming guidelines can accidentally (or purposely) leave employees feeling singled out because of their gender, identity, religion or body type. To combat this, an easy and now obvious change has been made to phase out dress codes that require women to wear makeup, skirts, dresses, high heels or pantyhose. However, employers still wanting to have explicit dress codes and grooming policies have more nuanced issues to address to catch up to the societal changes and new norms.

While employee handbooks may get updated every few years to stay compliant with the latest labor laws, workplace dress code and grooming rules are updated less frequently. With younger generations making up the bulk of the nation’s workforce, dress code guidelines should be updated much more often. Following are five workplace dress code assessments companies should make to help protect it from problematic complaints.

Assessment for Race

A policy prohibiting facial hair or a requirement to be “clean-shaven” can potentially be discriminatory toward certain races and religions. This type of prohibition needs to have a legitimate business justification, such as health and safety requirements.

Assessment for National Origin

 A policy should not directly prohibit any type of ethnic dress, such as African or Indian-style clothing. If a company allows casual dress under its policy, these ethnic types of dress are considered consistent with causal wear appropriate for the workplace.

Assessment for Sex or Gender

Some state statutes are requiring that dress codes allow an employee to dress consistent with the employee’s gender identity. Dress codes and grooming policies should be drafted and implemented as gender-neutral. By way of example, appropriate and prohibited clothing are provided in one list rather than having separate lists for different genders.

Assessment for Religion

A policy cannot prohibit head coverings in the workplace that are consistent with an employee’s religious beliefs. Employers should also be aware that certain piercings and tattoos may be subject to religious accommodation. It is important for employers to enforce any policies about piercings or tattoos evenly and consistent for all employees.

Assessment for Disability

A policy should encourage employees to contact human resources if they require an accommodation for a disability or other reason previously listed. Then, the employer can assess whether the request would create an undue burden before it is implemented and becomes an issue.

Conclusion

To minimize the likelihood of discrimination claims, a dress code should be only as specific as it needs to be to allow a company to consistently apply it and avoid any dispiriting impact among its employees. Attitudes around workplace dress have drastically changed, and companies must address old or antiquated policies to prevent unintentional or unwarranted bias that could be challenged in the wake of a swiftly moving area of law.

Stephanie Loughner is a partner at Denver-based Moye White. Loughner supports her clients in a variety of ways from the inception of its business, through compliance reviews, corporate and client management, policy matters and contract disputes. She also serves as co-chair of the firm’s employment group.

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