Categories: HR & Employment Law | by Nicole Lopes

It’s 2021. The American social and cultural atmosphere is constantly shifting, changing and evolving, and with that, organizations should too. Organizations should look at a variety of their policies and procedures, but let’s focus on one today: dress codes.

It’s time to “get with the times,” and make sure your policies and procedures are up-to-date.

Title VII of the Civil Rights Act on 1964 states that employers are prohibited from discriminating against applicants and employees on the basis of race, color, sex, religion and national orientation. Although this law applies to employers with 15 or more employees, many states have similar laws that apply to smaller entities. Regardless, it is a best practice for employers to be cautious when developing and implementing dress code policies to ensure they adhere to the law.

Here’s a quick guide to updating your dress code policy specifically:

-DOES MY DRESS CODE POLICY HAVE TO BE GENDER-NEUTRAL? For the most part, yes it does. A gender-neutral dress code policy can help avoid discrimination against on the basis of sex. In this regard, for example, your policy should not require all male employees to wear closed-toed shoes in the summer while allowing female employees to wear open-toed sandals. Whether closed-toed shoes are permitted or not should be applied across the board to everyone, or at least everyone who is similarly situated. This means that the employer can have dress code distinctions based on departments or divisions, for example, but it would need to apply to everyone within such department or division.

-CAN I BAN TATTOOS? In most cases, you can, and again such policies cannot be gender-specific (i.e., tattoos ok for women, but not for men). However, the better approach to minimize reducing your pool of applicants or employees — given the popularity of tattoos these days — is to consider banning VISIBLE tattoos (those who have them can cover them up). Any policy to this effect must apply consistently to all similarly situated employees, not just some of them. Note that you may have to make exception as a form of reasonable accommodation (discussed below).

-CAN I SIMPLY LIST A “BUSINESS CASUAL” DRESS CODE? Yes, absolutely! But leaving open to each employee’s interpretation of “business casual” can be problematic, so make sure your “business casual” policy defines exactly what that means, and that it applies consistently to all similarly situated employees. You can list gender-neutral attire that “fits” your dress code by including a list of appropriate garments. It may also be helpful to list inappropriate attire or appearance, such as sneakers or jeans – if it falls in line with your environment.

-DO I HAVE TO MAKE EXCEPTIONS? You might. In cases where an employee requests an exception to a dress code policy due to a sincerely held religious belief or disability, most employers will need to explore whether an exception to the policy can be reasonably provided without undue hardship. For example, if an employee requests to wear a religious head covering despite a “no hats” or similar policy, the employer will need to examine whether accommodating the employee (by allowing the head cover to be worn) truly causes it to experience an undue hardship. This may be the case if the head-covering presents a safety risk, but undue hardship generally does not arise merely because the employer (or a customer or co-worker) takes offense to the head cover.

WHAT ABOUT VIDEO CALLS? The pandemic made video calls and remote work even more prevalent than it was before. For the most part, your dress code rules can extend to the “virtual” office as well. While you don’t need to create rules for camera angles or types of lighting, organizations may want to consider developing dress code policies in accordance to what’s been outlined already. And, they may want to consider some recommendations regarding background distractions.

Ultimately, do the right thing. Make sure your dress code policy is general neutral, uses gender neutral language, and make accommodations for protected groups when necessary. And, if you have more questions, make sure to ask the experts!