Human Resources News & Insights

The practical and legal issues around establishing an ‘appearance code’

Dress codes can be a tricky area for many employers. But there are ways to set up a policy that works both for the organization and its employees. Guest poster and attorney Andria L. Ryan lays out a plan. 

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There’s no legal requirement that an employer adopt and maintain a dress or appearance policy, and many employers are hesitant to impose strict guidelines for fear of encroaching on employees’ freedom to express themselves.

But having such a policy in place before a tattoo, nose ring, haircut or head covering becomes an issue allows you to clearly set expectations and help you defend claims of discrimination.

Even better: A well-written policy can help protect a company’s public image, promote a productive work environment, comply with health and safety standards, and even prevent claims of unlawful harassment.

Drafting the policy

Before you begin, you should stop to think about the purpose behind your policy. The goal should be to set forth your company’s policy and expectations clearly and unambiguously while preserving the flexibility you need to make decisions.

Keep in mind that your dress code or appearance policy should reflect the company’s practices, and vice versa. A well-drafted appearance policy should address all aspects of employee dress and appearance, and should clearly explain that the company’s professional atmosphere is maintained, in part, by the image it presents to its customers, visitors and vendors.

The policy should state that all employees are expected to present a neat and well-groomed appearance.

The next step? Define what the phrase “neat and well-groomed” means in your company. Your policy can vary from a simple policy that defines the “professional” appearance you expect to a detailed policy that defines acceptable dress standards for both men and women; guidelines for the wearing of jewelry, perfumes and colognes; the placement, number and content of tattoos and other body art; and any safety issues impacted by certain types of clothing or accessories.

You may want to prohibit extremes in dress such as clothing that is too baggy or too revealing.

Finally, inform employees what to expect if they report to work in violation of the policy. Will they be sent home to change? Will they be paid for that time?

To ensure employee buy-in, consider involving workers in the development of the policy. Having had the opportunity to provide input, employees are more likely to support a dress code —  even one they don’t entirely agree with.

Tattoos, body art and piercings

There is no question that tattoos, body piercings and other forms of self-expression have become commonplace in modern society. While society seems to have become much more accepting of individuals’ choices for self-expression, it may not be a good idea for business.

Can an employer curb the limits of its employees’ self-expression in the form of tattoos, piercings, extremes in dress, jewelry and hairstyles at work without getting sued? The answer is yes. The key is to carefully draft these provisions and consistently enforce the dress code.

One option is to completely prohibit visible tattoos and multiple body or facial piercings. A number of employers have found this strict provision too limiting, however, and have adopted less stringent policies.

But even employers that permit body piercings or tattoos may still find it necessary to set some limits. Your policy should clearly spell out what is permitted. For example, if you permit the display of tattoos, you may prohibit the display of sexually graphic, violent or otherwise offensive tattoos, or may require that employees limit the number of visible tattoos.

The legal limits

Although employers are well within their rights to set limits and restrictions on employee dress and appearance, companies have to be aware of some potential pitfalls — things like claims for gender, religion, national origin, race and disability discrimination.

The key is consistent enforcement.

A common challenge to dress and grooming standards relates to requests for accommodations to certain religious beliefs. Employers must consider how to respond if an employee asserts a right to particular clothing, tattoos, jewelry or hairstyles on religious grounds.

Title VII and many state laws are clear – an employer can’t treat employees or applicants more or less favorably because of religious beliefs or practices, and you must accommodate employees’ sincerely held religious practices, unless doing so would impose an undue hardship.

The standard for demonstrating an undue hardship isn’t high, but employers must be prepared to show that they did indeed engage in the “interactive process” to explore a possible accommodation.

Fear that other employees may be upset by or “uncomfortable” with a religious expression isn’t likely an undue hardship. On the other hand, you can establish an undue hardship by showing that the accommodation diminishes efficiency on the job, impairs safety or requires more than ordinary administrative costs.

Again, the most important factor may be proving you have acted consistently. Employers may not place more restrictions on religious expression than on other forms of expression that have comparable effect on the workplace.

Some employers have already learned the hard way that if a ball cap or flamboyant hairstyle doesn’t pose an undue hardship, neither does a turban or a head scarf that is worn on account of sincerely held religious convictions. The key, as always, is consistent and even-handed treatment of all such requests.

The bottom line

Dress and appearance policies should be clearly stated in writing and readily available to all employees. While employers still retain wide latitude, there are practical, social and legal factors that call for careful preparation of policies related to appearance — not to mention consideration of accommodation requests that might have been readily (and safely) dismissed several years ago.

Andria L. Ryan is a partner in the Atlanta office of the law firm Fisher & Phillips, LLP.

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