Dress and Personal Appearance Policies

Dress and Personal Appearance Policies: The Do’s and Don’ts

By Allison C. Ulmer & Bart W. Miller, Collins Cole Flynn Winn & Ulmer, PLLC

Although it is the middle of winter, warmer weather will be here before we know it, and with warmer weather comes flip-flops, shorts and questions about dress and personal appearance policies. This can be a tricky area for employers to navigate, as it is impossible to establish “bright line” rules regarding dress and appearance that can be enforced in all cases, all the time. Clear, neutral, reasonable policies that are consistently applied – but with accommodations made when necessary – will help employers stay out of legal hot water. This article provides an overview of the “do’s and don’ts” when preparing and implementing dress and personal appearance policies.

Policy Basics

There is no legal requirement to have a dress and personal appearance policy, but many employers find it beneficial to have such a policy to create a professional image for the employer, to make it easier for employees to be identified, or for safety reasons. Dress and personal appearance policies can address topics such as clothing, shoes, tattoos, jewelry, piercings, facial hair, and hairstyles. They should be written in clear language with objective standards and examples so that the employer’s expectations and needs are clearly communicated to employees. Avoid subjective terms that are not defined, such as “professional appearance,” “business attire,” and “appropriate length.” Undefined, these terms tend to be subject to multiple interpretations. If you want to prohibit flip-flops, then say so! When preparing a policy, you may want to consider seeking input from employees. This can create employee buy-in, which is crucial for compliance, and boost employee morale. You should work with your legal counsel to craft a policy that meets your business needs in a manner that complies with the law. Problems typically arise when an employee desires to express his or her personality or beliefs in a manner that conflicts with the dress and personal appearance policy.

Legal Considerations

Title VII of the Civil Rights Act of 1964 (Title VII)

Title VII is a Federal law that applies to employers with at least fifteen employees. It prohibits discrimination against an applicant or employee because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or over), disability, or genetic information. These are known as “protected classes.” In order to satisfy Title VII, dress and personal appearance policies must be neutral, and they must not have a disproportionately negative impact on employees of a protected class, unless the policy is job-related and necessary to the operation of the business. This means a dress and personal appearance policy cannot differentiate between employees or treat some employees less favorably because of their “protected class.” For example, a policy that allows jeans and t-shirts on Casual Fridays but prohibits ethnic dress would discriminate on the basis of national origin, unless the policy is job-related and necessary to the operation of the business. Note, however, that courts have upheld policies that differentiate between men and women when they do not impose an unequal burden on either sex (for example, prohibiting visible piercings except pierced ears for women). We

Dress and personal appearance policy cannot differentiate between employees or treat some employees less favorably because of their “protected class.”

generally caution employers against adopting policies that impose different standards on men and women unless they are truly necessary, as such policies are vulnerable to legal challenge. Be aware that employers must make exceptions to their dress and personal appearance policies to allow employees to follow their sincerely held religious dress and grooming practices, unless doing so would pose an undue hardship on the operation of the business. An undue hardship could be based on workplace safety, security, or health concerns. For example, a policy that prohibits employees from wearing anything on their heads could interfere with an employee’s religious practices. In that event, the policy would need to be modified for the affected employee, unless it would result in an undue hardship for the employer. Whenever an employer is aware that a religious accommodation is needed, the employee and the manager should engage in an interactive process to identify accommodations that are acceptable to the employee and do not impose an undue hardship on the employer. This is a case-by-case determination. Managers should be trained to recognize this issue and handle it appropriately. The penalties for violating Title VII are steep. They include the employee’s lost earnings (back pay and front pay); the employee’s attorney’s fees; and damages for the employee’s future economic loss, emotional distress, pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life of the employee (these are capped at $50,000 - $300,000 depending on the size of the employer). Government entities do not have immunity for Title VII violations under the Colorado Governmental Immunity Act, because Title VII is a Federal law.

Americans with Disabilities Act (ADA)

Similar to religious accommodations under Title VII, if an employee requests an accommodation to the dress and personal appearance policy because of a disability, the employer must make an exception to accommodate the employee, unless it would result in an undue hardship.

Colorado AntiDiscrimination Act

While it does not add much by way of substantive requirements, the Colorado Anti-Discrimination Act permits “reasonable” dress codes as long as they are applied consistently.

Take-Aways

Dress and personal appearance policies are not a “one size fits all” type of policy. To avoid legal trouble, remember the following: • Consider whether you need to regulate dress and personal appearance; these policies are not required. • Make sure your policies are in writing and are reasonable, neutral, and clearly stated. • Enforce your policies consistently. • Engage in an interactive process when an accommodation is needed for a particular employee. • Policies that are “job-related and necessary to the operation of the business” provide the best defense to discrimination claims.