Dress Code Red: That Policy May Need a Makeover

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You’ve probably heard it before: Employees need to fit the company’s “brand,” “look” or even “culture.” In most cases, those words convey a sincere sense of business justification — fashion and luxury goods professionals must look the part to personify the image a company wants to portray both inside its walls and to the outside world. Historically, this ideal has led fashion employers to implement specific written policies and standards requiring, and prohibiting, categories of dress, grooming and other forms of personal appearance. If that sounds like your company (I’ll bet it does), take a look in the mirror to make sure you aren’t unsuspectingly wearing a target on your back.

The Basics: A Uniform Dress Code Is Generally Permissible, But…

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Workplace standards of dress and appearance are nothing new, and companies have long-determined that regulating this issue is important for business. For example, standards for factory and warehouse employees may be necessary for safety; more professional dress requirements for outside-facing employees or corporate environments may convey an appropriate tone for business relations, and many employers prohibit even the most bejeweled flip-flops on “casual” days.

Whether an employer demands formal “business attire,” allows “business casual,” permits “casual Fridays” (or “casual summers”) or even require uniforms, the good news is that laws generally permit employers to establish a dress code that applies to all employees, or employees within certain job categories. Employers may also require that employees maintain a clean and presentable appearance at work. But as with most company policies and practices concerning the terms and conditions of employment, it’s the details that matter.

Even the most well-intentioned, business-first justification for dress, grooming and appearance standards can cause a costly fashion company faux pas where these standards impose broad requirements or restrictions that unlawfully single out particular individuals or groups of people based on protected characteristics and classifications. In particular, employers and h.r. professionals must be aware that dress, grooming and appearance standards specifying rules concerning, for example, clothing, hairstyle, facial hair, makeup, tattoos and piercings can result in internal complaints and outside legal issues if those rules conflict with employees’ religious beliefs or practices, ethnic background, national origin, gender identification or disability, among other bases protected under federal, state and local laws.

Similarly, while companies may impose different standards for male and female employees, employers must be sure the different standards do not favor (or disfavor) either by imposing more onerous, unfair burdens on one than the other.

For example, a generally applied policy permitting women, but not men, to wear their hair long may not by itself be discriminatory on the basis of gender. But that policy would be subject to challenge if the company created further gender-based distinctions by also requiring women to wear their hair long, styled in a specific way, with particularly shaped eyebrows, makeup of a certain quality, nail polish and perfume, while men simply were asked to keep their hair and nails clean and professional looking.

The Specifics: Lipstick and Twists and Beards, Oh My

A growing number of fashion industry-heavy jurisdictions, including New York and California, have expanded antidiscrimination laws specifically to address issues of employer restrictions on employees’ appearance. For example, New York City, New Jersey and California have (or soon will have) laws on the books declaring unlawful those appearance or grooming policies that prohibit natural hair and treated or untreated hairstyles closely associated with race and religion (including twists, locs, braids, cornrows, Afros, Bantu knots, fades, payot and natural and/or uncut styles) to “conform” to abstract employer expectations.

Even regulating facial hair can be a cause for potential concern on religious grounds (where shaving beards interferes with religious beliefs) or where they raise disability issues (where skin conditions cause shaving to be painful or severely irritating).

As a result, common, seemingly neutral, policies of the past requiring employees to maintain a “neat and orderly appearance” or keep hair “neatly styled and trimmed” may be direct evidence of disparate treatment based on race, disability or religion (and perhaps other bases) in violation of antidiscrimination laws.

It is also important for employers to recognize that an employee’s dress or appearance choices may be an expression of, among other classifications, their transgender, nonbinary and gender nonconforming status. Therefore, company regulation into an employee’s dress or appearance along “traditional,” stereotypical, norms (particularly any regulation based upon the individual’s sex assigned at birth as opposed to gender identity; such as men dressing more “manly” or women more “ladylike”) risks running afoul of laws in a quickly growing number of jurisdictions guaranteeing protections and accessible, respectful, workplaces for all individuals regardless of status.

The Takeaway: Solving the (Dress) Code

Dress codes aren’t all bad, and they surely aren’t all unlawful, but companies should avoid the one-size-fits-all approach and instead should thoughtfully tailor policies to address their business needs and comply with laws in the geographic areas they do business. At a minimum, companies that determine a business need to regulate its employees’ dress, appearance or grooming in the workplace should, at a minimum, consider the following:

First, are the restrictions or standards so specific that they impermissibly single out (or treat less favorably) a particular person or group of people. Some starting points:

• Is there a dress code for women but not men?

• Does an appearance standard unfairly place a greater burden on one gender?

• Do facial hair standards run contrary to religious beliefs or implicate those with skin conditions?

• Do dress requirements or prohibitions affect employees on ethnical or religious bases?

• Does a policy requiring covering tattoos or piercings impact religious beliefs?

• Does a policy prohibiting employees from wearing certain hairstyles or types of clothing unlawfully discriminate against individuals on the basis of race, national origin or religion?

• Does a standard delineating how men or women should appear require individuals to conform to sex or gender-based stereotypes or norms that differ from their own identity or status?

If the answer to any of these questions could be “yes,” the policy may be subject to legal challenge despite any supposed “business justification” for the standard or restriction.

Second, does the company maintain a mechanism for providing reasonable accommodation to employees to permit modification of standards? For example:

• Permitting employees to wear head coverings in observance of religious beliefs;

• Allowing facial hair as an accommodation for disability or religious practices;

• Permitting an employee’s display of tattoos where required for religious purposes, or

• Permitting individuals to dress consistent with their individual status or gender identity.

In other words, does the rule permitting employers to address issues where exceptions are necessary for a respectful workplace have sufficient “give” (and where legally required)? Is there sufficient “give” in the rule to permit employers to address issues where exceptions are necessary for a respectful workplace (and where legally required)?

Finally, are supervisors and human resources personnel sufficiently trained to implement and uniformly and consistently apply dress, grooming and appearance standards and hear, investigate and resolve inquiries and complaints that may arise involving company policies and practices?

Employers are well-advised to review their policies with a keen eye toward creating an inclusive and respectful workplace and avoiding requirements or prohibitions that actually, or even stereotypically, treat individuals or groups of employees differently. That is always in style.

Marc Zimmerman is a partner at Freeborn & Peters LLP, a national law firm with offices in New York City; Chicago and Springfield, Ill.; Richmond, and Tampa, Fla. He represents management across the fashion and luxury goods spaces in litigation and transactional matters.

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