The sun is shining and the weather is hot.  This is the time of year when dress code violations creep up as employees dress for the warmer weather and tend to wear clothing that displays more skin and may be more appropriate for the beach than the workplace.  This is a good time to review your agency’s dress code policy to ensure that it is rationally related to a legitimate business concern, does not impermissibly discriminate and is uniformly enforced.

Legitimate Business Concern

Employers generally have the right to adopt reasonable regulations governing employee workplace appearance. An employee’s provocative dress or offensive tattoo could form the basis for a hostile work environment claim by other employees.  For this reason, employers should have a dress code policy that, to the extent permissible by law and practical for the workplace, addresses and restricts clothing, body art and piercings that could offend or be threatening to other employees.  Dress codes must also protect the safety of employees and the public.

Your dress code policy should be rationally related to a legitimate business concern and not just to promote a specific employer’s unique sense of style or taste.  The policy should be tailored to the job requirements.  For instance, the employer should consider whether the employee is visible to the public.  Courts are more likely to enforce stricter policies in positions where employees represent the public agency (i.e., police, firefighters, teachers, etc.), where employees have substantial contact with the public, and where projecting a “professional image” is important.  Where the employee has less or no contact with the public, a strict dress code may be more difficult to justify.

Discrimination and Reasonable Accommodation

Any dress code, tattoo, or piercing policy must not facially discriminate on the basis of race or national origin or any immutable characteristic which is closely associated with a particular race or national origin. Dress codes may not treat some employees less favorably because of their race or national origin, e.g.  prohibiting traditional African or Indian attire.

Reasonable accommodations should be allowed for religious practices or other concerns related to race, gender, and other potential problem areas.  If the dress code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify or permit an exception to the dress code unless doing so would result in undue hardship.   This may involve allowing an employee to cover their religious expression with clothing, bandages, or hats, or allowing a placeholder for a piercing, or any other accommodation which imposes a minimal cost on the employer.  Under California law, an accommodation of an individual’s religious dress or grooming practice that requires that person to be segregated from the public or other employees is not a reasonable accommodation.

Similarly, if an employee requests a reasonable accommodation due to disability, the employer must modify or permit an exception to the dress code unless doing so would result in undue hardship.  This may involve, for example, allowing a pregnant employee with swollen feet to wear sandals that are otherwise prohibited.

Uniform Enforcement

Employers should also ensure that their dress code is uniformly enforced and that supervisors lead by example.  This is because failure to enforce reasonable dress codes can lead to claims of hostile work environment by employees subjected to images or displays considered offensive, threatening, or insensitive.  Uneven enforcement of the dress code could also lead to claims of impermissible discriminatory treatment.

Finally, keep in mind that adoption of or changes to dress code policies may need to be negotiated with affected employee organizations.