A Look at Employer Dress Codes and Grooming Standards
Today’s business environment is replete with varying degrees of employee individuality. Employees come in all shapes and sizes, and dress in all styles and manners. However, the employee does not have unlimited discretion to dress any way they want to. The key words to remember when evaluating and creating employee dress code standards are: Be Reasonable!
Don’t Discriminate!
The biggest issue in employee dress codes is discrimination. While dress code standards may vary between male and female, these differences are appropriate and permissible if the employer has a clear, non-discriminatory rationale to support it. An employer generally can “require an employee to adhere to reasonable workplace appearance, grooming, and dress standards…provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity.” (Government Code section 12949.)
For example, to promote and present a professional “traditional” business image, an employer may allow women to have long hair while requiring men to keep their hair short. An employer may also make uniform policies allowing or prohibiting employees from wearing visible jewelry or clothing with communicative messages on them; require clipped nails, shaved faces, and clean hands.
In the case of Jespersen v. Harrah’s, (2006) 444 F.3d 1104, a female bartender was terminated for failing to adhere to the company’s dress code requirement that she wear facial make-up. The employee sued alleging sex-based discrimination. The court held for the employer and found the company’s dress code policies were reasonable and generally applied equally to all bartenders regardless of gender. The court noted the slight differences between grooming standards for men and women (men were required to have short hair, no ponytails) were not intended to foster a stereotype, nor did they create unequal burdens of compliance. Thus, the Court found the policies were not intended to discriminate but rather to promote a uniform, professional-appearing workforce.
The Jespersen court did not preclude the possibility of an employee bringing a viable claim of sex-stereotyping based upon grooming standards if a particular grooming standard is intended to be sexually provocative, or impermissibly promotes sex-based stereotypes. However, the employee in this case was essentially challenging “one small part of what is an overall apparel, appearance, and grooming policy that applies largely the same requirements to both men and women.”
Overall, employee dress code policies may permissibly differ between genders, if those policies have a reasonable, non-discriminatory purpose and do not burden one gender more than the other. Although California has some bright-line rules against employee policies (such as prohibiting an employer to require female employees to wear a skirt), an employer does not discriminate simply because they require their employees to dress and groom appropriately for the type of business in which they are involved.
Create Equal Policies!
Employers should create clear and reasonable policies regarding dress code and grooming standards. The boundaries should be clearly outlined and identified with both current employees and potential employees alike. Once hired, apply the policies equally.
The question is how equal is equal? Are male employees allowed to wear earrings or may female employees have visible tattoos? Employers are free to create policies prohibiting male employees from wearing earrings or which or allow an employee to show their tattoos. The answer is whether the employer has a legitimate, non-discriminatory purpose for the policy.
Clearly articulating a non-discriminatory dress-code and explaining its rationale to existing and potential employees can significantly reduce potential difficulties in the future.
Uniformity!
If a business requires the use of employee uniforms, a few issues should be considered. If employees are required to wear a uniform as a condition of employment, they must be provided a uniform at no cost and must be maintained without deduction for “wear and tear”. These rules apply even if the employee could use the uniform as “street apparel”.
A uniform is broadly defined as clothing and accessories of a distinctive design, fashion, or color worn by a particular group as a means of identification. Thus, if a business requires all employees to wear jump-suits adorned with the company logo, the uniforms must be furnished.
Clothing which is standard apparel in a particular industry and can be worn from one job to the next is not considered a uniform. Employers need not provide the clothes. For example, if a retail store requires employees to wear slacks and collared shirts during work hours, the employee’s clothing is not likely to be considered a uniform—slacks and collared shirts can be worn from one job to the next and are standard within that industry. The employer is also not required to maintain that clothing.
Consider however, a western-themed restaurant in which all employees are required to wear cowboy boots. Although cowboy boots can be worn in public when “off the job”, they are not standard in the restaurant industry and would likely be considered a uniform. The restaurant owner would then be required to provide and maintain those boots to its employees.
Creating and maintaining reasonable, non-discriminatory dress code and grooming policies and applying these policies equally among your employees will allow you to project the image you desire for your business while avoiding adverse employee reactions. Just be reasonable!
This article appeared in the June 19, 2006, issue of the San Diego Business Journal.
