Thursday, May 7, 2015

“Get In Shape For Summer” Fashion Alert: Summer Attire in the Workplace

With a combination of warmer weather and the influx of seasonal (often student) workers, employers often adopt a more relaxed dress code for summer months.  As the layers of clothing come off, employers need to be aware of the potential legal liabilities associated with enforcing their summer dress codes.  Two concerns generally arise when establishing a dress code at work: 1) Freedom of speech or expression claims and 2) discrimination claims based on either gender or religion.

Dress codes  are most commonly challenged as a violation of an employee’s right to freedom of expression when they prohibit wearing of religious or political symbols. This issue may arise more frequently with student workers as a result of the popularity of “body art” and more revealing clothing that exposes the art, although it may always be an issue when an employer’s dress code impacts an employee’s ability to wear or display facial hair, tattoos or religious symbols.  Courts will analyze these types of claims by balancing the neutral business purpose for the dress code prohibition against the employee’s rights. Employers should  be able to articulate a genuine business need to prohibit tattoos, piercings, facial hair and other potential symbols which could be religious or politically based when adopting a summer dress code.

Dress codes must also comply with Title VII of the Civil Rights Act and not discriminate on the basis of race, color, national origin, religion, or sex. 42 U.S.C.A. § 2000e et seq.  Summer dress codes should accommodate employees’ religious beliefs, “unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.”  42 U.S.C.A. § 2000e.

On a more practical note, student workers in general are less experienced workers and may not understand the impact that clothing, or the lack thereof, may  have in the workplace. Employers can and probably should prohibit  clothing that is overly casual or revealing, such as tank tops or shorts, since it could invite unwanted horseplay and lead to allegations of sexual harassment.

It often seems that dress codes lean heavily against women, containing far more prohibitions on typical female clothing than typical male clothing. This may be especially true in a dress code designed for summer months as more women than men are generally tempted to wear open toed shoes and expose more skin, for instance. Specifically, in regards to summer dress codes that differentiate between appropriate attire for men and women, legal professor Jennifer L. Levi writes:

[i]n most contexts, courts readily acknowledge that facially sex-based practices and policies are presumptively unlawful under Title VII.  When it comes to dress codes, however, the opposite is almost always true. Although courts have acknowledged that dress codes that impose sexually exploitative dress requirements or one-sided disadvantages for either men or women are impermissible, the typical dress code that simply distinguishes the appearance of men and women in the workplace has been found to be unobjectionable by courts. Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353, 355 (2008).

Therefore, while dress codes may be enforceable if they simply distinguish the appearance of men and women, employers should take caution when drafting dress code requirements based on sex or gender. Employers should ensure that employees’ summer attire is appropriate based on the work setting, allowing for comfort while maintaining professionalism and tailored to the particular business involved.

Best Practices

  • Reevaluate summer dress code;
  • Educate employees on the dress code; 
  • Ensure that employees adhere to that code;
  • Reeducate employees on anti-harassment policies;
  • Contact an experienced attorney to help draft or revise summer dress code.