Dress codes—a helpful workplace rule or a trap for the unwary? A recent Forbes article (High Heels and Workplace Dress Codes: Urgent Action Needed, Say U.K. MPs) relates the story of Nicola Thorp, who was sent home from her receptionist job at an accounting firm in London because she was not wearing at least a 2” heel. She thought her formal flats were sufficiently business-like but her employer disagreed and sent her home without pay to change. This sparked a discussion in Parliament.
As we emerge from the year end “let’s update that employee handbook” season, I want to encourage you to look at your dress code. At the outset, I want to make clear I am not talking about dress codes that require particular safety equipment or a uniform. Those kinds of dress codes are typically defensible, even if you have some different standards for men and women. I want to address the policies that are not safety driven or about making sure customers can identify the employee in the room.
In the spirit of full disclosure, I admit that I am a “less is more kind of lawyer” when it comes to policies. I tend to think you don’t need a complicated dress code because you will never cover everything anyway. My preferred dress code policy looks like this:
We expect you to be and look professional, coming to work in clothing that is neat, clean and appropriate for our work. If you are not dressed appropriately, we will talk with you about it and ask you to change, which could include going home.
I think this policy encourages supervisors and managers to talk to their direct reports and coach them about appearance—which is typically part of how to be a successful employee. Does that open the door for supervisors to enforce the policy unevenly? Yes, but probably not any more unevenly that that supervisor already enforces the detailed dress code.
If you don’t want the less is more dress code, what should you do? Rule One: Enforce the dress code consistently. Dress codes are bright lines so you have to be sure that they are rigidly enforced. Rule Two: Forget about Rule One when an employee requests a reasonable accommodation for a disability or religious belief.
Beyond those rules, I think you can tell your employees that they need to project a certain image (e.g., no extreme hairstyles, limited piercings or tattoos, etc.) if you want, although you could still get a challenge [School of Hard (Dread) Locks: EEOC Loses Appeal Over Hairstyle Ban]. Once you get into varying standards for men and women, you may be able to enforce it but you are asking for a challenge—based on sex, gender stereotypes, or gender identification. Be careful and only have rules for which you want to go to the mat.
With that said, here are a few dress code provisions that will almost certainly get you in trouble:
- Women’s skirts should be no more than __ inches above the knee. The first time I saw this provision (when I still wore skirts above my much younger knees) the proscribed length was 4” above the knee. I thought that could end up being pretty short (depending on how tall you are). More importantly, the last thing I wanted was a supervisor measuring a skirt (mine or anyone else’s). Not surprisingly, this policy was selectively enforced (which is how it landed on my desk in an EEOC charge). Just say skirts should not be too short or revealing—then address problems.
- No earrings on males. Once you raise a different standard for men and women, you could get a challenge. Think about whether it would be just as effective to limit all earrings to one per ear that don’t drop below the ear lobe. If you want to prohibit earrings on males, just be sure it is important to your business.
- No jewelry (except a wedding ring). It’s the “except” that gets you in trouble. This is clearly not a safety concern (because a wedding ring would present the same safety issue). It opens you up to challenges (e.g., my nose ring is part of my religious observance, my promise ring to my same sex partner, etc.). Do you really need the except?
- Employees must wear appropriate undergarments. Okay—this wasn’t actually in a corporate dress code, it was in the dress code for the maximum security prison I visited last month. However, if your dress code doesn’t say that people have to wear appropriate undergarments, does that mean the woman who is obviously unencumbered by a brassiere (much to the chagrin of her female coworkers) doesn’t have to wear one? Of course not. If your dress code talks about being professionally or appropriately dressed, talk with the employee about what you expect.
Why is this so hard? Because we want our employees to convey a certain look—it may be professional or tech or casual—but we want a look. We also, curiously, are all talking about diversity—which is kind of the antithesis of the conformity that a dress code suggests.
So—save yourself some grief and come up with a dress code that does what you want it to do and enforce it—or chuck it altogether.