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Press : Warm Weather Allows for More Casual

Workplace Attire, but Certain Rules Still Apply
Human Resources Report™

Bloomberg BNAWith those lazy, hazy, crazy days of summer about to spring forth, now might be a good time for employers to remind employees about what not to wear to work. Attorneys in Florida, Texas, and Virginia, and a fashion and image consultant in New York told BNA May 8 that even if employers allow ‘‘dress down’’ or casual attire days, they should still recommend that workers avoid coming to work without socks or in sandals, sneakers, extremely high heels, short skirts, hats, T-shirts, flip-flops, and excessively revealing clothing such as tank tops, shorts, or sleeveless shirts. ‘‘The business community has a tendency to relax dress standards in the summer,’’ said Steven M. Bernstein, a partner with Fisher & Phillips in Tampa, Fla. But inevitably, he said, ‘‘something gets lost in the translation.’’

Fashion consultant Erika Chloe Grundland said many employers have eliminated ‘‘dress down’’ days because ‘‘employees have no idea of what’s acceptable and use this opportunity to wear whatever they want without considering proper casual clothing for the office.’’

‘‘We somehow go from A to C, and instead of seeing our employees report for duty in appropriate, but more comfortable, apparel,’’ he said, ‘‘they skip right by the comfort standard and turn to the types of outfits they might wear to a club or bar.’’ Erika Chloe Grundland, chief executive officer of My Image Expert, an image and fashion consulting firm in New York, said many employers have eliminated ‘‘dress down’’ days because ‘‘employees have no idea of what’s acceptable and use this opportunity to wear whatever they want without considering proper casual clothing for the office.’’

Statutes Covering Dress Codes. Attorney Michael Kelsheimer, a shareholder at Looper Reed & McGraw in Dallas, explained that under Title VII of the Civil Rights Act of 1964, ‘‘employers have a responsibility to reasonably accommodate their employees to the extent they can’’ with regard to dress codes. ‘‘It doesn’t mean that if an employee belongs to the ‘church of nudism’ you have to honor it,’’ Kelsheimer equipped. ‘‘But, certainly, if someone needs to wear a yarmulke or burqa, or some other headdress related to
their religion, to the extent that it doesn’t interfere with their ability to do their job, then HR needs to be responsive to that.’’

In addition to Title VII, other federal laws that affect employer dress code policies include the National Labor Relations Act and the Occupational Safety and Health Act. Attorney Alison D. Hurt at LeClairRyan in Richmond, Va., said in a client alert about dress codes that the NLRA, which protects workers’ rights to unionize and engage in ‘‘concerted activity,’’ can protect employees’ ability to wear clothing, armbands, buttons, or other items that express union or labor messages. OSHA in part addresses the use of safe clothing and other personal protective equipment, Hurt said. In addition, the Americans with Disabilities Act and the Rehabilitation Act could have an impact on employer dress codes, because they require reasonable accommodation of employee disabilities, Hurt noted. ‘‘For example, an employee with Raynaud’s syndrome, a circulation disorder, may require a modified dress code to stay warm, such as being allowed to wear a sweater or jacket over a uniform,’’ she said. ‘‘In addition to the numerous federal laws that can have an impact on workplace dress policies, don’t forget about state and local laws, which often provide broader protection for employees than federal law,’’ Hurt pointed out. ‘‘Under Michigan’s Elliott-Larsen Civil Rights Act, for example, it is unlawful for employers to discriminate against applicants or employees on the basis of their height or weight. Under California Government Code § 12947.5, it is unlawful for an employer to ‘refuse to permit an employee to wear pants on account of the sex of the employee. ’’ And Washington, D.C.’s Human Rights Act prohibits employment discrimination based on ‘‘personal appearance,’’ Hurt said.

Tailoring Dress Codes. Employers should tailor their dress code to their particular industry, Hurt told BNA. ‘‘For example, in the corporate setting, dress codes are fairly standard depending on whether the office is business professional or business casual,’’ she said. ‘‘The same rules obviously cannot be applied in a retail setting where employees have a particular uniform that they are required to wear.’’ When it comes to establishing a workplace dress code, Bernstein told BNA that ‘‘there is no one-size-fitsall approach.’’ ‘‘To the extent a company is contemplating borrowing someone else’s policy, that could be begging for trouble,’’ he said. ‘‘I encourage our clients to fashion and implement a policy tailored to suit the unique aspects of their own corporate culture.’’

Developing and Enforcing Codes. When it comes to developing and enforcing workplace dress code policies, Hurt recommended that employers:

  • Communicate with workers and managers. ‘‘Explain the dress code policy to them, and be open to questions,’’ she said. ‘‘Make sure your managers understand how the policy should be uniformly implemented. And communicate effectively with employees who request accommodations or exemptions from the rules.’’
  • Accommodate. ‘‘Be open and willing to make reasonable accommodations, and demonstrate this openness to employees,’’ she said.
  • Be consistent. ‘‘If a dress code rule applies to one employee, it applies to all employees,’’ Hurt said. ‘‘Save yourself a lot of headaches—and maybe even a lawsuit or two—by being uniform and consistent in your implementation of dress code and appearance policies.’’

Bernstein suggested that when considering a dress code, employers ask:

  • What kind of working environment am I hoping to achieve, and how would relaxed standards impact our overall corporate culture?
  • What has been the practice within our area and industry, and how will this impact public perception within the local business community?
  • Have we relaxed standards on Fridays or on other occasions in the past? If so, have employees been willing to hold up their end of the bargain?
  • Is it sensible to apply an across-the-board approach, or are we better off holding the line with regard to those departments that have regular customer interaction?
Erika Grundland at My Image Expert said employers should be specific about their dress code policies. ‘‘Heat and comfort have been known to impair one’s judgment when selecting proper work attire for a casual or professional business setting,’’ she said.

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