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April 25, 2012

Sleeveless Tops and Capri Pants

If you are like many companies, these two items may be part of your current discussion regarding summer dress code.  Yes, it is rapidly approaching and it seems the discussion erupts after the first warm, unexpected day when an employee shows up to work in something that is, perhaps, questionable.  Then the whole can of worms opens up.  Is it appropriate to wear sleeveless tops?  What about collarless shirts?

Many of these answers depend on your business, your customers, and the overall philosophy of appropriate “dress” within your culture.  Whatever the point of view, an understanding of the issues and legal concerns surrounding dress and appearance standards is necessary to ensure that you can implement an effective code that meets the needs for professionalism and safety in your organization.  My next few blogs will explore some items for consideration when drafting your dress code policy.

1.            How much freedom does an employer have in setting appearance standards for its employees?

Typically, a lot.  Organizations may generally impose standards based on “social norms.”  Appearance and dress requirements that are based on legitimate business needs (e.g., safety needs, industry norms, management philosophy, types of jobs involved, common business standards) are more likely to be upheld should a discrimination charge be filed.  Workplace rules based on “personal taste” are typically difficult to defend.

2.            What are the discrimination issues?

Dress and appearance standards may violate federal or state anti-discrimination statutes if they are applied inconsistently or create a disparate impact on a protected group.  Sex and religious discrimination are most commonly alleged.

3.            Sex Discrimination

a)            Dress and Appearance

Dress code differences for men and women do not inherently create sex bias.  Different dress standards for men and women that reflect common social norms have generally been upheld.  Therefore, employers do not have to apply identical dress standards for men and women.  However, dress codes not based on societal norms that impose a greater impact or burden on one sex, that are antiquated or based on sex stereotypes, or that are significantly different for men and women typically cannot be upheld.


The following practices have generally been upheld:

i.              Requiring men, but not women, to wear ties.

ii.             Allowing women, but not men, to wear earrings.

iii.            Terminating a female juvenile center employee for wearing too much makeup (after repeated warnings).

iv.           Prohibiting men from wearing long hair.

v.            Because of safety reasons, requiring employees to wear hair a certain way or to use a hair net.

vi.           Requiring facial hair to be neatly groomed; however, completely prohibiting facial hair may be discriminatory on the basis of religion, disability, or race.

Discrimination has been found where:

i.              Female employees, but not males, were required to wear uniforms.

ii.             Female employees, but not males, were forced to wear smocks.

iii.            A manager required a female employee to wear makeup within days of being notified that the employee was pregnant.  The manager had also asserted that pregnant women were less attractive.

iv.           Maximum weight requirements were established for female airline employees where none were established for males.

v.            Only women were required to wear contact lenses.

vi.           A convenience store fired a black employee who had a skin disease aggravated by shaving and who refused to shave.  (Black males are most likely to have this condition, known as PFB.)  Company concerns regarding “image” generally don’t justify a “no beard rule.”  PFB may also be a disability under the ADA.

vii.          Male employees were required to wear jackets and ties, but females could wear jeans, sweaters, and other informal apparel.

b)            Harassment

Employers have been held liable for sexual harassment because they had required female employees to wear provocative clothing.

Discrimination has been found where:

i.              A female lobby attendant was required to wear sexually revealing and provocative clothing that subjected her to derogatory comments and harassment from the public.

ii.             A female cocktail waitress was required to wear a revealing costume while male servers wore tuxedos.

My next blog will focus on some of the potential discrimination related items concerning disabilities, religion, and racial items for consideration.  Check it out next Monday, April 30!


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