Private-sector firms are given some latitude on what they can and cannot include in a dress code. For the most part, a dress and appearance policy that is based on a reasonable business interest is allowed. However, there are some limits to a private company’s ability to control its employees’ appearance.
1. Failing to Clearly Define the Dress Code/Appearance Policy
Companies may adopt dress and appearance policies that are unclear about what is and is not allowed. Specifically, does the policy govern facial hair, tattoos, and piercings? The policy should state the reasons behind the code and limits to ambiguous terms. For instance, if a firm has “Casual Fridays,” are jeans allowed? What about paint-spattered/baggy/hole-ridden jeans? Defining what is allowed on casual days will clarify the firm’s expectations.
2. Not including the Company’s Anti-Harassment and Anti-Discrimination Policies into the Dress Code
The dress code should make clear that employees must comply with the company’s policies against discrimination, violence, and harassment. For instance, T-shirts with racial or religious slurs or symbols should not be allowed, as they would reasonably be read to be offensive to a person based on his or her race or religion. Similarly, a shirt with a sexist message should be banned for the same reasons.
3. Interferes with Employees’ Exercise of Religious Rights
The policy should not prohibit grooming or clothing which are part of an employee’s religion. For instance, a requirement that men must wear their hair short would interfere with a Sikh man’s practice of his religion, which may include the practice of growing hair without cutting it. A policy stating that hair must remain uncovered would inhibit a Muslim woman’s right to practice her religion by wearing a hijab. An employer may, of course, center its policies around important safety standards. For instance, if a workplace would catch on certain clothing, the company may disallow such clothing for safety purposes.
4. Inhibits Workers’ Right to Wear Union Messages
A workplace policy may inadvertently prevent an employee from engaging in his or her rights under the National Labor Relations Act. A policy which prevents workers from wearing buttons/logos may be read to prohibit an employee from wearing a pro-union button or T-shirt. This is an area in which the National Labor Relations Board has signaled it will increase its attention in both the context of union and non-union workplaces.
5. Failing to Train Managers
Even with a perfectly drafted policy, companies can find themselves the subject of an EEOC or NLRA investigation if they do not properly train supervisors on how to implement the policy. Any of the above concerns (stemming from a union button, for example) may arise if a supervisor fails to note the federally protected exceptions to the employer’s rule, which should be noted in its policy. On the other end of the spectrum, a manager who fails to consistently apply the rules or is too lenient because of an argument that an employee has a free speech right to wear offensive clothing could make the employer liable. Keep in mind that the First Amendment’s right to free speech applies to the government and governmental entities, not private employers.