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by Mike McCluskey, Senior Technical Editor, CalChamber
Many parts of California get hot — sometimes reaching temperatures of more than 100 degrees. This often leads employees to ask their employers to relax their dress code, but just because it’s blisteringly hot outside doesn’t mean that employers can’t enforce their guidelines on how employees present themselves in the workplace.
Depending on a company’s industry and culture, dress codes range from business formal — often seen at law firms and financial institutions — to casual, usually referring to comfortable, everyday wear while still being clean and presentable, which is often embraced by tech startups or small, informal businesses.
In recent years, more companies seem to be loosening their dress codes as more choose business casual for their workplace. In fact, how both employers and employees view the importance of dress codes has significantly changed, as an Express Employment Professionals and the Harris Poll survey shows. For example:
Still, a company’s dress code policy — whether written or verbal — is one of the most efficient and common ways that employers can communicate their reasonable expectations of how employees present themselves in the workplace.
However, employers need to make sure their dress code is not discriminatory. Employers can communicate reasonable expectations for dress and grooming but need to make sure their policies are fair and practicable.
Don’t currently have a written dress code policy? Employers should first identify the legitimate business reasons that warrant a particular dress code, and then create a policy tailored to those specific business reasons — for example, requiring employees to wear protective footwear and other safety equipment on construction or manufacturing worksites to address safety concerns, or imposing appearance requirements related to the company’s client base, such as wearing company uniforms so customers and clients can easily identify employees.
Be wary of creating a dress code with very specific language — like requiring “no more than three inches between the hem of skirts or shorts and a person’s knee.” Though the policy might be well-intentioned, how would it be enforced? Will HR or company supervisors need to start walking around with a ruler? And most importantly, what legitimate business reason would that serve?
Employers also need to be very careful — a dress code that imposes a greater burden on one gender over another could easily turn into a discrimination lawsuit. And dress codes should not reinforce gender stereotypes. It’s vital to ensure any dress code policy is applied equally on a gender-neutral basis as California law protects an employee’s right to dress consistently with their gender identity or gender expression.
When it comes to employees’ tattoos and piercings, no law prohibits employers from requiring their employees to cover up them up, so long as the employer’s policy is consistently applied without regard to race, age, gender or any other protected class.
And California law prohibits discrimination against employees based on their hairstyles, including hair texture and protective hairstyles such as braids, locks and twists.
Additionally, employers must consider an employee’s religion before enforcing a dress code policy because California’s religious discrimination protections and reasonable accommodation requirements protect religious dress and grooming practices, described as:
“While employers generally have the ability to set reasonable dress standards, they need to avoid potentially discriminatory provisions that impact groups of persons based on protected characteristics, such as race, gender, religion and national origin” says CalChamber Employment Law Subject Matter Expert James Ward. “For example, employers generally can’t have different dress codes for men and women, which discriminates based on gender, gender identity and gender expression. ”
Finally, during the summer heat, some employers may be tempted to add a summer dress code, but it should depend on your type of organization. “If you work in a warehouse or building products, it probably makes sense to allow your employees to wear shorts in the summer,” says CalChamber Vice President of Human Resources Hilda Watson. “But when you work in an office where the temperature is controlled, it doesn’t make as much sense.”
If a company does create and enforce a dress code, it’s advisable to detail it in the employee handbook. CalChamber’s Employee Handbook Creator online tool guides employers through every step of creating an employee handbook, including a dress codes and other personal standards policies.
Dress code violations can happen at any time of year, but summer is when employees are more likely to bend dress code rules.
“My experience has been that people get too casual and relaxed,” Watson says. “It’s the time of year I start seeing more inappropriate clothing, like spaghetti straps and flip flops.”
Just because it’s hot outside doesn’t mean employers need to stop enforcing their dress code. Their policy should explain any disciplinary measures that employees face for violating it — being sent home for the day, for example.
Some dress code violations can be handled easily, like an employee wearing a crude T-shirt — the employee can simply put on a sweatshirt or jacket to cover the shirt, or flip it inside out. But keep in mind that any type of potentially harassing behavior is a very serious issue. It doesn’t matter what a person is wearing — harassment cannot be tolerated and harassing incidents and complaints should be promptly investigated and addressed.
If you receive any dress code complaint, act quickly on it and address the situation in a manner consistent with the relevant policies in your employee handbook. By taking quick action, your company can avoid — or promptly address — harassment and other complaints based upon a coworker’s attire.
It’s also important to determine if an employee’s dress code violation is potentially protected by law, for example, if what they are wearing is related to a disability or their sincerely held religious beliefs. “If an employee is violating the dress code, it’s important for employers ask why before they discipline the individual to ensure that the employee’s dress or grooming practice isn’t protected by law”, says Ward. “For example, California’s Fair Employment and Housing Act protects religious dress and grooming practices, requiring employers to make accommodations for them unless doing so would create an undue hardship. In other words, if the employee’s religious dress or grooming conflicts with your policy, you must make an exception and accommodate that unless you can show that would create an undue hardship or safety issue.”
Similarly, if an employee with a disability asks for a modification to the dress code as a reasonable accommodation and the modification would still allow the employee to perform the essential functions of the job, an employer must consider allowing the modification unless it creates an undue hardship.