Las Vegas - bright lights, non-stop action, exciting entertainment. And when it comes to getting dressed for Vegas, it's a place where nearly anything goes - fancy dressing, sloppy dressing, next-to-nothing dressing - it all works. But what can employers do if they find that their employees have brought too much of Vegas into the workplace?
Not Just A Roll Of The Dice: Employers' Leeway To Establish Dress Codes
In thinking about what is and is not appropriate in their particular workplaces, employers are not left to the luck of the draw or the roll of the dice. In fact, there is much that employers - especially those in the private sector - can do in order not to take a gamble on how employees show up dressed for work.
There is no federal law that specifically governs employee dress codes. Employers are permitted to implement nearly any type of dress code policy they wish, so long as the policy does not discriminate on the basis of a protected class or adversely affect one group of employees more than others. Generally speaking, employers have great leeway in crafting their own particular policies for their own particular business needs - whether it be requiring professional dress, a basic street-clothes uniform, business casual, scrubs, sweats or even, for some Vegas employees, lots of glitter and sequins.
Of course, saying there is no federal law dealing directly with dress codes is not the same as saying that no laws impinge upon employers' ability to implement their dress code of choice. Multiple federal laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the Occupational Safety and Health Act (OSHA), may come into play. In addition, employers must consider a wide array of state and local anti-discrimination laws - the basis on which many dress code policies have been challenged.
Finding The Trump Cards: Employers' Legitimate Reasons For Dress Code Requirements
Though employers have wide latitude to craft dress code policies, they should tie their dress codes to legitimate business needs. Concerns such as safety, security and public health are paramount and are nearly always sufficient to justify dress code requirements stemming from these concerns.
For instance, an employer operating a manufacturing facility may require all employees to wear pants for safety reasons, so as not to get fabric caught in any machinery. An employee's concern that her religion does not permit her to wear pants (based on an actual case) is not going to require her employer to re-evaluate its dress code or safety regulations in order to accommodate her religious beliefs. Similarly, a requirement that restaurant employees working in a kitchen be clean-shaven or wear a beard net over any beards will almost always be viewed as a justified dress code requirement based on concerns for public health and sanitation. Whenever an employer has dress code requirements based on safety, security or health concerns - whether stemming from the employer's own policies or state and local regulations - employers are on firm ground to deny requested accommodations from employees that may interfere with these safety, security or public health safeguards.
An area that is less clear - though no less litigated - is a company's business need for a professional image or appearance. Such a justification is legitimate, though it is in this area that employers may need to yield more often to employee accommodation requests. To prepare to respond to such requests and potential litigation, employers should strengthen their business justification for their dress code policies by closely tailoring the policies to their business needs. The more customized the policy is to an employer or set of employees, based on such distinctions as different job positions, job duties, site locations or industry standards, the stronger the argument that the dress code is based on a legitimate business need.
Not Always A Straight Flush: Employers' Need To Accommodate Employee Concerns
In recent years an increasingly litigious (and legally creative) workforce has brought a wide array of claims against employers seeking accommodations or exemptions from dress code policy requirements. It may seem that no matter how closely connected a dress code policy is to a company's legitimate business need, the company should be prepared to deal with potential claims stemming from its dress code. At the same time, there are good reasons, including legal obligations, to accommodate employees' dress code concerns, which if done properly, may reduce the risk of a disgruntled employee filing a claim.
The most rapidly growing types of claims are those stemming from employees' religious beliefs and practices. Employers must attempt to reasonably accommodate employees whose bona fide religious beliefs or practices are burdened by the company's dress code, unless doing so would create an undue burden for the company. Thus, on the one hand, an employer whose dress code prohibits hats or head coverings may need to accommodate a female Muslim employee who needs to wear a hijab (head covering) for religious reasons, since the accommodation is not likely to be viewed as unduly burdensome on the employer. On the other hand, an employee who requests that he be allowed to wear a turban instead of a required hardhat may not need to be accommodated, since the employer's safety concerns would trump the employee's religious objections.
In addition to religious-based claims, claims based on sex discrimination are also fairly common in the context of dress codes. Employers may impose dress code requirements that reflect current social gender norms of dress even if they affect only one sex, so long as the requirements are not overly burdensome on one sex. For example, case law supports dress codes requiring male employees to wear short hair, requiring women to wear makeup (so long as this is not an undue burden) and prohibiting male employees from wearing earrings. At the same time, from a business and employee relations perspective, employers need to decide if they really want to turn away qualified applicants or employees who happen to wear earrings, have hair that extends below their shirt collars or do not want to wear makeup.
While religious and sex discrimination cases are the most common types of dress code claims, employers need to consider other potential avenues for challenges. Creative employees (and their attorneys) have challenged dress codes on the basis of race, national origin, disability, ethnicity and gender identity. Whether in the context of employees who have beards, piercings, dreadlocks, ethnic jewelry, tattoos or who are undergoing a transition in advance of gender reassignment, employers are likely to face continued challenges to their dress code policies.
No Need To Play The Slots: Ways To Reduce Litigation Risks
While litigation risks are real concerns, there is much that employers can do to reduce these risks and, at the same time, increase compliance with dress code policies. A few key points to consider.
Make your dress code policy concise and understandable. Use examples to demonstrate acceptable and unacceptable types of clothing and appearance. While these examples are bound to need updating from time to time (due to changing fashion trends, employees pushing the line or revised expectations), most employers can easily identify a host of dress options that are inappropriate for their particular workplaces. Use gender neutral standards in the policy where possible. Also, be sure the policy provides the company discretion to interpret the policy.
Educate your employees on the policy. Be sure, as with other key employment policies, that the dress code policy is discussed with employees at orientation. Do what is needed to convey the importance of the policy and ensure employees understand it: review the policy and its examples, show pictures, sponsor a workplace fashion show. Of course, there is no need to insult your employees' intelligence. In some workplaces, a simple policy that requires neat and professional dress and appearance will suffice.
Train managers to properly enforce the policy. This may well be the most important area for employers to consider. Establishing the best dress code policy language is all for naught unless the policy is consistently and uniformly applied. Managers must understand the policy, be able to recognize and respond to requests for accommodations and know how to approach employees who fail to adhere to the policy. Disciplining one employee for wearing her too-low-cut blouse but ignoring the nearly-see-through attire on another employee is a great way to set up a potential discrimination claim. Inconsistent or arbitrary enforcement of a dress code policy is worse than no policy at all.
Discipline employees for policy violations. In the absence of a knowing, blatant violation, it is fine to give an employee one "free pass" for a dress code violation. (The employer can assume that the employee's mirror was just not working properly that morning.) But, there is no need to tolerate the same violation again. Managers must address dress code violations and properly utilize the company's discipline process. Again, inconsistent actions will not only raise potential discrimination claims but will also undermine the company's stated business rationale for the dress code policy in the first place. The more times an employer looks the other way, the less serious the company's rationale behind the policy will be viewed.
As long as employers are aware of the risks and take efforts to minimize them, they have much discretion in establishing dress code policies for their workforce. So while your employees may want to have fun at work (and that is often ideal), employers can still keep the Vegas nightlife out of their workplace.
Marc J. Scheiner is an Associate in WolfBlock's Employment Services Practice Group. He provides counseling on a variety of employment issues, represents clients in employment litigation matters and conducts trainings for managers on a range of workplace topics.