Dress codes

Scope

Many employers implement dress codes for employees.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

Some of the primary concerns in setting a dress code include:

• How to define appropriate clothing.
• Whether the policy is discriminatory.
• How to address an employee’s appearance or hygiene.

Defining the dress code. The first challenge is how to create a dress code policy that will allow employees flexibility in their appearance, but still allow the company to present a professional image and determine that a particular outfit is not acceptable. It may not be possible or desirable to list every type of acceptable clothing. Fortunately, concepts such as “business casual” are fairly well understood to have general guidelines. A dress code policy might therefore give examples, but refrain from listing every possible outfit.

A few examples might include:

• Dress pants and slacks, or dresses and skirts that extend below the knee, are acceptable attire. Jeans or denim pants are only allowed on casual Fridays unless the nature of the job allows for an exception (i.e., employees who perform manual labor might not be required to wear dress pants).
• Business casual shirts (such as button-down shirts or blouses), or similar attire are required. Employees are not allowed to wear T-shirts.
• Shoes must be appropriate for the work environment. Footwear such as “flip flop” sandals are an example of unacceptable footwear.

By providing examples, rather than attempting to list every possible outfit, the company provides guidelines but retains the right to determine that a particular type or style of clothing is not acceptable, even if the outfit is not specifically listed.

Discrimination concerns. Personal appearance can become the subject of a discrimination complaint, either through the federal religious discrimination laws (some religions require particular items of clothing) or through state laws on the issue. In California, employees can not be required to wear pants (for example, women must be allowed to wear dresses or skirts unless there is a legitimate reason to prohibit them). In the District of Columbia, discrimination based on “personal appearance” is prohibited, and the term includes manner or style of dress, and manner or style of personal grooming (such as hair length and beards).

In some cases, employees have brought claims for religious discrimination based on personal appearance. One of the better-known cases is Cloutier v. Costco, where an employee who had facial piercings refused to cover or remove them at work. In that case, the employee claimed to be a member of the Church of Body Modification, and claimed that showing her piercings was required by her religion.

The regulations on religious discrimination actually state that “whether or not a practice or belief is religious is not at issue” and that religious practices “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Obviously, employers could face legal challenges when enforcing a dress code. Since each case is unique, there isn’t a specific response that is acceptable in all situations. However, if an employee expresses a reason for failing to follow your dress code, or for wearing a particular item of clothing, it may be a best practice to apply the religious discrimination provisions and determine if a reasonable accommodation can be made for the employee. Employers may have difficulty showing that allowing a particular item of clothing would create an undue hardship on the company.

Addressing problems. Addressing a dress code violation can be a challenge, and may need to be handled carefully, as noted above. Of particular concern are issues of personal hygiene.

Personal hygiene issues are very sensitive, so it’s important to be discreet and private when confronting individuals. Also, there could be legal issues to consider. For instance, an apparent body odor could be caused by a medical issue, and not necessarily bad hygiene. Employers must tread cautiously to avoid encroaching on an condition that may fall under the Americans with Disabilities Act, and which may require an accommodation.

Bring the individual aside to discuss the matter privately, and indicate that it has been noticed the employee tends to have a noticeable body odor (or unacceptable clothing, or whatever the issue). In the case of body odor, the person may not be aware of it, or may be painfully aware of it but believe nothing can be done about it. Work together to come up with solutions. You may want to suggest that the employee check with a doctor to see if the issue can be addressed from a medical standpoint. There are products that can be easily obtained, for example, for hyperhydrosis (excessive sweating), if that might be the case. There may be other remedies as well, depending on the nature of the problem. Sometimes an odor is caused by the way a person’s body chemistry reacts with a certain substance, like a particular soap or laundry detergent. You might suggest the employee discuss all possibilities with a doctor.

Indicate your support. Stress that you are concerned about the employee and just want to make sure he or she is well. The key is to show respect and compassion. As embarrassing as this conversation is for you, it’s doubly so for the employee, so try to minimize the embarrassment as much as possible. It’s also best not to broadcast to other employees that you have had this conversation with an employee. Simply monitor the situation or discuss it privately in a couple weeks to see if any progress has been made.

Dress code or uniform? Since employers may have to pay for a uniform, but can generally establish any dress code they choose, this raises the question of the difference between a “uniform” and “dress code.” For example, if you require employees to wear black or tan pants and a blue shirt as part of a uniform, is this a true uniform?

Probably not, because under federal and state wage laws, the term “uniform” has a specific meaning. It generally does not include street clothing such as khaki pants or similar articles that are commonly worn. Typically, the term refers to unusual items that are not be suitable for daily wear.

For example, office employees could be expected to wear “business casual” clothing such as dress slacks and dress shirts, but this isn’t a uniform. However, if you require something unusual (like requiring a bartender to wear a tuxedo shirt or Hawaiian shirt as part of the bar’s image) then the clothing may be considered a uniform because it’s unusual and not commonly worn as street clothing.

Many states restrict employers from making employees purchase or maintain a uniform (unless the employee agrees in writing to do so). However, if the employees are simply required to wear black or tan pants of their own choosing, without a company logo or unusual style required, then it probably isn’t a uniform but simply a dress code requirement.

The federal Wage and Hour Division has an opinion letter (FLSA2004-1NA, Garments as uniforms under FLSA ) which found that khaki pants and a blue polo shirt were ordinary clothing and not “uniforms” under the Fair Labor Standards Act (FLSA). State agencies generally apply a similar standard, where a “uniform” means clothing of distinctive design or including a company logo.

So even though some laws restrict your ability to make employees purchase or maintain a uniform, clothing such as black or khaki pants and a blue shirt, probably isn’t a uniform under such laws. Rather, it’s street clothing that is not distinctive and that can be worn outside of work, and is simply part of a dress code.