Employment lawyers are hearing more inquiries about drafting and enforcing dress codes or professional appearance policies.  This may be in response to casual days run amok.  Or it could be the come-back of the “professional look” courtesy of Don Draper and his colleagues at Mad Men.
Whatever the reason, an employer can legally implement a dress code policy and enforce it.  But there are certain touchstones that employer should keep in mind, including:

  • Have a carefully written policy:  Otherwise, enforcement can be subjective and inconsistent.  This doesn’t necessarily mean a detailed description of what can or cannot be worn, but rather a policy rooted in business-based reasons.  These can include public image, customer relations, productive workplace, and safety.  And if there are specific items of clothing you want to prohibit (jeans, cut-offs, sandals), a “non-exclusive” list limits subjectivity.
  • Beware of certain discrimination complications:  An employee can, under limited circumstances, claim a religious reason for a type of dress or appearance.  In some circumstances, “reasonably accommodation” of certain religiously mandated attire may be required unless it constitutes an “undue burden.”  Tattoos and piercings rarely meet the standards for such protection.  If an employee claims a religious reason for a dress code violation, consulting counsel on precedent and administrative guidance may be helpful.  There can also be “disparate discriminatory impact” concerns in dress code enforcement, such as a disproportionate impact on one gender over the other.  A policy should be as gender-neutral as possible.
  • NLRA Concerns:  The National Labor Relations Act (NLRA) prohibits the universal banning of union insignia, even in non-union workplaces.  Labor lawyers can guide you through the narrow exceptions to this NLRA requirement if union insignia is a dress code issue in your workplace.
  • Promulgation and manager training:  Like any new policy, be sure that employees sign an acknowledgement (or have a clear record of distribution) and train managers on the “dos and don’ts” of the Policy – it’s one that may require more careful training than usual since there is a heightened possibility of a poorly trained manager making religious or gender-specific statements that could cause complications.

Takeaways:  Employers do not need to tolerate poor employee appearance.  Certain basic legal issues play an important part in drafting an effective dress code or professional appearance policy.  Draft your Dress Code Policy with specifics that fit your organization’s needs and stay within legal boundaries.  Employers can also keep enforcement legal by keeping it uniform (pun intended).