“You Can’t Wear That to Work” — But What About My Rights?

By Thomas Cox | Fisher & Phillips LLp | @employeradvisor

A popular restaurant recently made news for amending its dress code. Among the items no longer permitted are engagement rings and “bright” hair. On the other hand, nose piercings and tattoos are permitted. What are the limits to an employer’s right to implement and enforce an appearance code? Do employees retain the right to freely express themselves through their attire and “look,” so long as it does not disrupt business?

Employers have many valid business reasons for adopting policies that regulate dress and appearance in the workplace. For instance, employers may seek to promote a certain public image through the dress and appearance of its employees. A company’s dress and appearance policy is also viewed by some employers as a way to increase harmony and productivity, and to present a unified corporate image to its customers.

What about tattoos, body piercings, and other forms of self-expression that now have become common in the American workplace? Under some circumstances, these forms of self-expression also might clash with the expectations of an employer. These conflicts are magnified in our multigenerational workforce where the “norm” for each generation varies.

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From the perspective of the employee — what are the limits on management’s ability to regulate self-expression? Do employees maintain a right to any form of self-expression? Can big brother now dictate the very clothing that its employees are required to wear at work?

There is no legal requirement for a company to adopt a dress or appearance code. Employers maintain however, broad discretion to implement policies that serve their needs. This includes dress and appearance policies. Employers should consider whether the policy is necessary for the operation of the business. Employers may also want to consider employee morale before adopting a policy. Importantly, employers must also ensure that their dress and appearance policy does not create a claim of religious discrimination. For example, in a recent 8 to 1 opinion, the United States Supreme Court found Abercrombie & Fitch Stores Inc., liable for refusing to hire an applicant who wore a hijab for religious reasons, despite the fact that she never informed the company why she was wearing the head scarf.

Employers must now evaluate dress and appearance policies to determine if particular forms of dress or self-expression are, in fact, religious practices that require an accommodation. In evaluating whether to adopt a dress and appearance policy, management should consult with a human resources professional, a competent employment counsel, and also consider the potential positive and negative impact that the proposed policy could bring. Establishing a relationship between the policy and the success of the business is one way to help defend the policy if challenged. The best defense for employers, however, is litigation prevention through the adoption of a sound policy. AT

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