David Harmon: Hi, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the Employment Strategists. Today’s episode is Hot Weather, Hot Takes: Dress Code in the Workplace.
Mariya Gonor: It’s very appropriate time as we’re heading into the warmer months. Everybody’s excited and, at least in the northeast, and that’s when the office disasters happen.
David Harmon: Sure. Well, most companies, or at least many, well, many companies, issue updated and revised dress code policies if they anticipate that there could be some problems.
Mariya Gonor: Right, that’s key. If they anticipate.
David Harmon: With what their employees will wear. And those are, some of them are really comical.
Mariya Gonor: For sure.
David Harmon: Because, sometimes you look at people who come into the office and you think to yourself, what was that person thinking, right?
Mariya Gonor: Well, I think, I think that a lot without the dress code, just generally, but to your point, yes. Some outfits are not appropriate.
David Harmon: Yeah. Well, it’s always, I usually say, did that person look at themselves in the mirror? But all kidding aside, they’re requirements that employers impose on proper dress for the office. And this is becoming, I think, more. Significant as more companies are returning their employees to the office.
Mariya Gonor: That’s true.
David Harmon: Notwithstanding the fact that certainly during COVID and when it was a 100% remote workplace, people were, you know, dressed maybe from the waist up.
Mariya Gonor: Right.
David Harmon: As they were on their Zoom calls or in very casual attire. Almost to the point of wearing pajamas.
Mariya Gonor: Business up top and right, PJ’s on the bottom. That’s what I’m wearing right now. That’s why only the top of me is visible.
David Harmon: Right. Well, I actually have my tennis shorts on as I’m sitting here. It’s a new style. But anyway, so that’s something that we have to talk about from the employee perspective as well as from the employer perspective.
Mariya Gonor: For sure.
David Harmon: But since we’re talking about policies, let’s talk about how policies are issued and what that means and how then are they policed.
Mariya Gonor: And I think there’s four main categories of what we’re going to discuss today as it applies to the policies, right? The four main concerns. One, whether these policies are applicable equally to all different genders. Two, whether these policies account for the Crown Act. As might have been enacted in various states. Three, whether these policies comply with the EEOC guidelines, and four, whether these policies properly accommodate ethnic and religious beliefs of the employees.
David Harmon: Well, that’s a critical aspect of any dress code. Any requirement has to certainly accommodate, for religious belief. And religious practices. And usually the rule of thumb is as long as it doesn’t impose an undue hardship on the employer. And so that’s a many times is, affected by a request for accommodation.
Mariya Gonor: We’ve also collected a number of cases throughout the country that address each of these instances, and I think some of these cases are actually quite fun and quite interesting.
David Harmon: Yeah, so there are essentially four types of dress codes. In the office, there’s the business formal, business professional, business casual and casual. The most problem that employers have is in the casual space.
Mariya Gonor: Casual Fridays are canceled.
David Harmon: Right just like it was in the office, right?
Mariya Gonor: Yes. You know what’s shocking to me though? We’ve been doing this for what, about a year? And this is the first time I’m raising the office, which is like one of my favorite shows. But yes, casual Fridays are canceled.
David Harmon: Yes, because they just took it too far and they could not police it. And, we recommend that you watch that because it gives you an extreme perspective on what people, how people interpret it, the office dress code and casual on casual Friday.
Mariya Gonor: I think one of these days we should do an episode as to whether or not Toby is a good HR representative.
David Harmon: Well, it’s pretty clear after you watch the show that he really is having a hard time.
Mariya Gonor: No, no, don’t, no,
David Harmon: I think so.
Mariya Gonor: No, not Toby. No,
David Harmon: I think so. I think so.
Mariya Gonor: Alright, so in light of what you just mentioned, David, let’s discuss the legal guardrails that are applicable to. Any type of dress code policy. So the very first thing is that any dress code, no matter how written, has to be equally enforced as against men, women, or anybody else who’s working in your office.
David Harmon: Yeah, it has to be uniformly applied. That’s clear. Otherwise, it opens up an employer to claims of discrimination, which is really the guardrail for issuing, any policy. Frankly.
Mariya Gonor: A good example, if you don’t allow. Tube tops. That has to be enforced uniformly. As against men and women?
David Harmon: Yes. I usually have to, I usually have to leave my tube top at home during at least casual.
Mariya Gonor: During casual Fridays.
David Harmon: Casual Fridays, yeah.
Mariya Gonor: Except for when it’s casual. Friday in the summer.
David Harmon: Even then, even then, inappropriate for the office. But I don’t want to, I don’t think we should go through every article of clothing, but there are certain things that are in the extreme that people don’t think about when they get dressed in the morning.
Mariya Gonor: Right.
David Harmon: As to whether it would be appropriate and, and whether or not it would be violative of a dress code of policy.
Mariya Gonor: So, when drafting a policy, an employer should be mindful that you cannot have a requirement that applies to women but not men. For instance, and this is a fun fact from California. California was the very first state who enacted a statute that said that employers cannot require women to wear skirts to work. So, any policy where men would be allowed to wear pants and women couldn’t became illegal. I think at this point, New York, New Jersey, Pennsylvania have followed suit, same thing on the federal level, and you cannot have a dress policy that applies differently to men and women.
David Harmon: I don’t think that dress code policies are necessarily, supposed to be punitive in nature. Dress code policies are designed to keep employees on brand and to present the company in a particular way.
Mariya Gonor: Right.
David Harmon: And you never know who’s coming into an office. While in our office, we have our, we have our own offices, our own space, but we do have clients coming in and out of our office, and we want to have a dress code so that clients see the type of presentation that we wanna make. The professional nature of a law office, so it doesn’t have to be a law office, but any company, any employer, wants to impose a code that they believe is appropriate for the brand of that company.
Mariya Gonor: That’s Fair.
David Harmon: Another aspect of address code. Is that when you have certain parameters, you’re now promoting inclusivity and equality in the workplace as far as what the limits are of that dress code. So, whatever is outside, I just drew a little circle. If that’s outside, that’s inappropriate. So, it’s inappropriate for everyone.
Mariya Gonor: Right.
David Harmon: If it’s inside, it’s appropriate for everyone. And that creates a sense of everyone hoping, at least the employer, hoping that everyone’s gonna follow those rules and those guidelines. And then the important thing is to impose it. In a consistent and clear way. And that’s another way of looking at a dress code, which I think a lot of these concepts are also applied to other policies in enforcement. But this, we’re talking about dress code.
Mariya Gonor: So, one way that would be inappropriate to draft a dress code. To your point is to say that women cannot wear any kind of outfit that exposes the knee, right? Instead of saying women cannot expose their knees, it should say no outfit should be above the knee that it applies to.
David Harmon: Right, not gender specific.
Mariya Gonor: Not gender specific. This way, a man cannot wear a Jort that exposes their knee either.
David Harmon: Okay, so it’s really not too high and not too low. But it’s not necessarily directed at women.
Mariya Gonor: Yes.
David Harmon: Or men.
Mariya Gonor: Correct.
David Harmon: Okay, so one of the things about a dress code also that should be considered when an employer is designing one, is that you do want to encourage personal expression as well. You don’t want to cut that off. So, there are limits. It’s a matter of how far you go to enable that personal expression so that everyone feels not only a part of the community, but also is expressing their individuality. And that, I think, encourages a better environment within a workforce.
Mariya Gonor: So, give me an example.
David Harmon: Okay, so if it’s casual Friday and I decide that I wanna wear a tie because I view that I, even though I don’t, but I should be, I want to be a little bit more formal. That’s not a violation of a dress code, there are, if I wanna wear a certain amount of jewelry, maybe that’s not necessarily that I’m expressing myself personally. If someone wants to wear a large crucifix around their neck, that’s a religious article. But yet it is an article of personal expression, and as long as it’s not crossing a line of being offensive but it is a religious article. Then that’s personal expression. If someone comes in and is walking around with a, you know, large-size crucifix, that might be an issue. But wearing it around the neck, that’s a different degree. So that’s what I would think is something about that, you know, personal expression. There are a lot of other examples of personal expression.
Mariya Gonor: I was just gonna say.
David Harmon: Wearing a Jewish star, wearing something now. You can’t go off into politics, you see, you can’t walk around. I think that wearing a MAGA hat could be something that would, in that was, that’s political expression. And you can prohibit that in the workplace.
Mariya Gonor: Yes. Yeah, for sure.
David Harmon: So that those are there, it’s a case-by-case, but I think overall, an employer is more successful if they encourage the personal expression.
Mariya Gonor: Right, so whenever you’re drafting a policy, you wanna make sure that you have reasonable, guardrails that apply to personal expression, but also clearly state what is not permissible so you don’t run into issues later. For instance, as you’re drafting, a policy may state that political expression is not protected. Or political expression is not gonna be considered personal expression. So, I cannot come in with a t-shirt that says, you know, a bunch of expletives on it and expresses what I would like the president to do at a particular time.
David Harmon: Okay. Oh, with or without the president? Just a lot of, you know, expletives on your shirt. Inappropriate.
Mariya Gonor: I was sent home for that just on Tuesday.
David Harmon: Oh, okay. Alright, well we are actually gonna send you for training now. well one of the things about any policy, frankly, but specifically with a dress code is that, you know, keep it simple. If it’s kept simple, it’s easier, and there is a wider range. With which an employer can enforce that policy. But keeping it simple, not getting too caught in the weeds, but yet you also want to educate, and it doesn’t hurt that, you know what, what will, we saw this in the office episode, right? So someone, one of the actors of the people in the office, expressed, was complaining about another person.
Mariya Gonor: Right.
David Harmon: Someone wearing sandals that were open and exposed, and she didn’t like the fact that she was seeing his toes, and so that was a complaint. Then there was another, a woman who was dressed completely inappropriately and exposed, you know, exposed her top, exposed her bottom. It was just completely off the rails. And that was really, for humor purposes, to show that extreme. But in the end, they wound up by just disbanding casual Friday altogether.
Mariya Gonor: Right.
David Harmon: Cause they couldn’t get their act together.
Mariya Gonor: Too much personal expression.
David Harmon: Yeah, so I think there’s, there’s gotta be a, you know, reasonable judgment that’s made when someone gets dressed in the morning. And that person should be adhering to the policy that the company puts out. But any company that puts out a dress code has to be mindful of these other items that we discussed.
Mariya Gonor: So, David, to your point, the EEOC actually expressly provides that while an employer may require all workers to follow a uniform dress code, even if the dress code conflicts with some workers, ethnic beliefs or practices, a dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.
David Harmon: Right. Well, that runs to the personal expression. Allowing that, and it also runs to the accommodation. For ethnic or religious basis. Based on you know, an accommodation that someone would be looking for. And that’s why, there might be an issue.
Mariya Gonor: And to your point about the religious expression, the EEOC similarly provides that if a dress code conflicts with employees religious practices and the employee’s requests and accommodation, the employer must modify the dress code or permit an exception to the dress code. Unless. Doing so would result in undue hardship, and we actually have a couple of cases that address that exact issue.
David Harmon: Okay.
Mariya Gonor: So, the first one is the EEOC matter adverse to Abercrombie and Fitch. A Muslim applicant wore a hijab to her interview and the manager didn’t hire her, stating that the hijab look did not match with the company image. Even though the employee did not ask for an accommodation and there was a look policy, the EEOC found that she did not have to ask for an accommodation in that instance because it’s just such a well-known it’s a common religious article.
David Harmon: Common religious right article.
Mariya Gonor: Exactly. And that Abercrombie had to make a change to their policies, and the fact that it wasn’t complying with their look policy didn’t really matter. It wasn’t an undue hardship.
David Harmon: So that’s where it comes down to. It comes down to the accommodation being requested or not having to be requested, and whether it imposes that undue hardship on the employer, and that’s the test. And an undue hardship for one might not be an undue hardship for another. So there, that’s, subject to interpretation.
Mariya Gonor: Right, so the employers must remember that if they suspect a religious conflict, they must consider an accommodation even if it wasn’t expressly requested.
David Harmon: Okay. Do you have another case?
Mariya Gonor: Yes. An opposite of that actually is the decision in the Cloutier versus Costco, where the court cited actually in the opposite direction and agreed with the employer. There, a woman with facial piercings said that removing those facial piercings violated her religious beliefs. Costco said would disagree with that and claimed that. Piercings hurt their image, right that was not the image that they wanted to portray or present to their customers. And allowing the employee to look in, in that specific way, would harm that brand. And the court agreed.
David Harmon: And the court agreed that that was the case in that particular situation.
Mariya Gonor: Absolutely.
David Harmon: So recently, there was an article where Starbucks is requiring workers to ditch their colorful shirts in favor of blacktops and neutral pants. So that really runs to a uniform. And when you create a uniform, then no one’s being discriminated against because everyone is in the same ensemble, and they’re provided that, I would hope.
Mariya Gonor: The uniform.
David Harmon: Yeah. They’re provided the uniform or they’re given a, sometimes companies will then be required to provide an allowance for that. Right. If there’s a uniform that’s required. But that’s something that. Typically you’ve gone into a Starbucks, there’s been, a variety of, attire. And now they’re trying to make it uniformly. And sometimes that can be helpful and sometimes it can be detrimental in terms of the freedom of expression and whatnot. But it also creates a sense of inclusivity. Everybody’s in the same attire.
Mariya Gonor: When we were in, in school, in like grade school, we were required to wear these like very ugly green jackets and pants. It was just like, not cute. So, while maybe there was some inclusivity, it was just like not a good look.
David Harmon: Growing up, I was very much aware of social pressures that some people felt based on what type of clothing they wore to school. And I remember my dad telling me that he had to wear a uniform to school, and that eliminated any pressure to conform. Everybody wore the same jacket, the same type of pants, and shirt, and that eliminated all pressure of conformity. Everyone was dressed the same. So, the way that they differentiated themselves was on the field or in the classroom.
Mariya Gonor: That’s the idea that was the argument that we were offered too. But again, it just wasn’t cute.
David Harmon: You didn’t like it?
Mariya Gonor: No.
David Harmon: Okay. But you could change when you got home, right?
Mariya Gonor: Yes. Yes. For sure. And you know now. I get to change now.
David Harmon: Get that off me. Right.
Mariya Gonor: Okay, now that we’ve talked about the outfits. Many other dress codes address how an employee is supposed to look outside of the outfits, for instance, requiring that women wear makeup or requiring that hair be neat, brushed away, and what have you and such policies could conflict with state and federal law. Many states have enacted what’s called a Crown Act, and the Crown Act stands for Creating a Respectful and Open World for Natural Hair Act. That specifically outlines that a policy that requires a hair to be neat may be discriminatory because certain ethnic hairstyles do not fall into the category of neat or cannot be managed in such a way that it could be described as neat.
David Harmon: So those would be braids, twists, locks, afros, Bantu Knot, other hairstyles that I probably don’t even know the names of. But those are just some examples that we have.
Mariya Gonor: Yep, you’re right. And actually California again, is on the forefront with that. They were the first state to pass this act in 2019, and it provides that hair textures and styles associated with race are protected under the anti-discrimination laws. And since then, about 20 states have joined and enacted these statutes.
David Harmon: So that’s really where there is a codification of personal expression, having to do with hair, not necessarily clothing. So that’s, you know, that’s above the area where there’s clothing. But let’s talk about hats, whether, so you can look at certain hats, or head dress. That would be a religious expression, right? Such as a Yamaka or some sort of a headdress, that would be deemed a religious accommodation that would be required. Alright, so Mariya, let’s talk about the checklist that we recommend to clients when establishing a dress code.
Mariya Gonor: Absolutely. So there’s a couple of things actually, namely five things that we want the employer to keep in mind when they’re creating a dress policy. One, keep it gender neutral. Two, accommodate religious and cultural dress and grooming, and be mindful that obligation may be triggered even without an accommodation. And also be mindful that if you’re going to reject the accommodation that you document what undue hardship has caused you to reject that accommodation is that if that’s a safety issue, if that’s a brand-look issue, all of these things need to be considered.
David Harmon: And there have to be certain terminology that’s avoided, such as clean cut or presentable, which are subjective terms.
Mariya Gonor: Or neat.
David Harmon: Neat, clean, that sort of thing. So that’s something that should be avoided. And it’s not a bad idea to draft those, to establish what the parameters are, and then have counsel take a look at it to make sure that it’s compliant. And not going to run afoul of any discrimination laws.
Mariya Gonor: Absolutely. You wanna train your managers to be mindful of any kind of religious or ethnic bias when they’re enforcing the dress code. And finally, you wanna be very consistent in how you are enforcing that dress code across the board.
David Harmon: If there’s a way for employers to make the dress code something that is, provides a sense of in inclusiveness, inclusivity. Provides a sense of we’re all in this together and how it contributes to the mission of the employer. That’s going to be a positive outcome, with any restrictions that are imposed. But a lot of times it’s gonna be policed on a case-by-case basis because there’s no question that those incidents are gonna happen where someone’s gonna come in dressed inappropriately or crossing the line and not necessarily complying. Maybe someone who needs a little bit of, of nudging in terms of this is not, you know, correct or here, here’s a jacket, put this on, type of thing.
Mariya Gonor: Right.
David Harmon: And don’t wear that sort of thing again.
Mariya Gonor: All right, let’s head into our strategies. What is our strategy for the employer?
David Harmon: So, the employer has to draft a code that is reasonable and will be accepted by the employees generally to maintain, as I just said earlier, to maintain that sense of civility, inclusivity, and that is permissible and does not discriminate. That’s the key thing, and that is gender neutral and it has a sense of reasonableness to it.
Mariya Gonor: Okay, and what about our strategy for employees?
David Harmon: They should comply.
Mariya Gonor: That’s a good strategy. That’s true. You gotta comply.
David Harmon: But also to the extent that you are, feel that there is a religious or ethnic accommodation that needs to be made, raise it.
Mariya Gonor: Absolutely.
David Harmon: It’s something that can be discussed. HR should be open to those requests and there may be times where that request is denied. And other times when it is deemed to be acceptable. So, it’s a case-by-case. One thing that I often think about with dress codes is that for certain people, when they decide what they’re going to wear, they have to remember they’re going to the workplace. They’re going into the workplace. They’re not going out on a date, they’re not going to a club, they’re not going to a picnic necessarily. They’re going into the workplace.
Mariya Gonor: Yep.
David Harmon: And there has to be a sense of respect for the others in the workplace because there’s a wide range of dress codes that people have individually, and that has to be respected as well. So you’re not only dressing for yourself. You’re dressing for the others in the office, notwithstanding the fact that there is a dress code policy, but you are also dressing in a way that should be respectful of others.
Mariya Gonor: Well said. Thank you for joining us today. We hope that you found our time together, educational and at least somewhat entertaining, and please remember that nothing we’ve discussed here should be taken as legal advice.
David Harmon: If you wish to continue the conversation, you can find us wherever you find your podcast on Apple, Spotify, or on our website. If you would like to continue the discussion, please reach out to us at theemploymentstrategists@norris-law.com.