Private-sector employers have great latitude in regulating employee appearance in the workplace. They can generally dictate that employees wear uniforms, clothes that convey a particular image about the company, or clothes that do not offend common sensibilities of good taste. They can even prohibit visible tattoos and (most) body piercings.
Although many employers attempt to exercise these rights by adopting personal appearance policies, they often fail to provide sufficient guidance about what is appropriate under their policies. The lack of clear direction sometimes results in confusion for managers and employees—and problems for the employer when the policies are scrutinized by governmental agencies such as the Equal Employment Opportunity Commission (EEOC) or the National Labor Relations Board (NLRB). Even employers with well-drafted policies often get in trouble with these agencies because they did not train their managers and human resources personnel to correctly interpret and apply them in light of employment law. From the obligations imposed by Title VII of the Civil Rights Act of 1964 (Title VII) to reasonably accommodate an employee’s religious beliefs, to those imposed by the National Labor Relations Act (NLRA) to allow employees to engage in protected concerted activity, employers need to understand that their otherwise broad discretion about regulating employees’ appearance in the workplace is tempered by a variety of employment-related laws. The following guidelines can help employers avoid these common problems—and achieve the many benefits of a good personal appearance policy.
What’s in a Name?
The starting point for any policy is its name. Given that employers typically seek to regulate aspects of grooming, such as facial hair, tattoos and body piercings, along with the clothing their employees wear, these policies should be titled “personal appearance” rather than “dress code” policies.
Next, a well-drafted personal appearance policy should let employees know why the company has adopted it. Then, the policy should clearly state what it requires. If uniforms are required, it should say so. If the company allows employees to work in casual attire, let employees know what the limits of “casual” are at this company (appropriate casual attire on an employer’s Silicon Valley campus is likely quite different than at an office in Washington, D.C.). Many employers allow employees to wear jeans; few want them wearing jeans with holes or that are heavily frayed. Many employers with casual dress polices still expect men to wear collared shirts and, in any event, employers are wise to advise employees to understand they are dressing for work, not a night club. In each of these cases, employers should identify specific types of clothing that are not permitted (e.g., “jeans are allowed but should be in good condition, without holes or fraying”).
The policy also should reference the other company policies that can be implicated by inappropriate attire, including anti-harassment and workplace violence policies. By clearly telling employees that they need to understand their appearance can, itself, violate the anti-harassment policy, for example, employees are on notice that they can be directed to not wear extremely short mini-skirts or mesh or compression t-shirts, for example. Incorporating these other policies into a personal appearance policy also allows the company the discretion it needs, as no policy can articulate every item or type of clothing that might be prohibited.
Likewise, t-shirts are increasingly common in the workplace, but employers need to be careful to make sure that employees’ shirts do not have graphics or words that could reasonably offend someone based on a legally protected classification. A t-shirt with the Confederate flag, for example, should not be permitted because it violates the company’s anti-harassment policy. Although the Confederate flag can stand for many things apart from support for slavery, and its wearer might have no intent of conveying a message that he or she thinks slavery was good, a reasonable African-American (the standard for illegal harassment) would understandably interpret the flag as offensive.
Dealing with the t-shirt slogan/graphic has become a burgeoning problem for some employers, who find themselves debating employees about whether their dress codes improperly limit their employees’ free speech rights. But the First Amendment does not apply to private-sector employers, and employers must be aware that, although t-shirt designers and employees can be a creative lot, it is the employer that has the obligation to ensure a workplace free of harassment and violence. Employers may be empathetic with employees’ First Amendment rights, but they are legally obligated to comply with Title VII, not the First Amendment.
Beyond the restrictions that an employer might need to impose on employee attire to ensure compliance with Title VII, employers also must comply with the affirmative obligations Title VII imposes to accommodate employee religious views and practices. For example, an employer could not enforce a policy that required all employees to wear pants against a female employee whose religious practice requires women to wear modest dresses. Also, employers must ensure their personal appearance policies do not inadvertently but illegally discriminate against employees. Policies that prohibit facial hair, for example, would disparately impact African American males, who disproportionately experience pseudo folliculitis barbae (severe shaving bumps). In such cases, the policy would violate Title VII unless the requirement is job-related and consistent with business necessity. Employers also must be mindful of their obligations under the Americans with Disabilities Act, which might require them to not enforce against a disabled employee an otherwise legitimate policy if that would be a reasonable accommodation.
In addition to implicating Title VII, personal appearance policies can easily, and inadvertently, violate the NLRA, either affirmatively or indirectly. For example, the restrictions imposed on attire by many employer policies often include (illegally) prohibiting employees from wearing any buttons or logos on clothing that the employer has not pre-approved. Such policies (absent “special circumstances”) violate the NLRA because they restrict employees from wearing pro-union buttons, for example. Through a t-shirt slogan, employees can cheaply and dramatically express their concerted views about particular employer rules or actions and, in most cases, employers cannot prohibit the employees from wearing such shirts (if it allows employees to wear t-shirts). An appearance policy cannot be ambiguous if that ambiguity could cause a reasonable employee to believe it restricts him or her from engaging in protected concerted activity. As the NLRB has become more committed in recent years to making the NLRA relevant to non-organized workers, ambiguous policies will likely be increasingly targeted by some employees, unions and the NLRB.
Fortunately, employers can handle most violations of their personal appearance policies discretely. A discussion with the employee, explaining the reasons why the employee has violated the personal appearance policy, is typically the first step. If the conversation is handled in an appropriate manner, and appeals to the employee’s empathy to view the issue from the perspective of others, most individuals will understand the company’s position even if they do not agree with it. After explaining the company’s position to the employee, and assuming that the incident is the first time the employee violated the company’s personal appearance, the employee can be allowed to cover the clothing item that violates the policy, for example, with a sweater or long-sleeve shirt. If the employee refuses to comply, the company should require the employee to leave and return when he or she complies with the company’s policies. If it is a repeated violation, of course, the company should impose discipline, in progressively serious measure, if that is the company’s typical approach.
Of course, the best-drafted policies will not protect employers if they are disparately enforced, or enforced rigidly without regard to the laws that impact employer’s rights to regulate workplace appearances. A well-drafted personal appearance policy, however, can go a long way toward reducing unnecessary workplace problems and employment claims.
About the Author
Mark G. Kisicki is a shareholder at Ogletree Deakins (@OgletreeDeakins) in Phoenix. He can be reached at (602) 820-0057 or mark.kisicki@ogletreedeakins.com.
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