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Legal Clinic

Dressing for Success

Having a dress code -- and not having a dress code -- can pose potential problems for employers. When creating such a policy, be prepared to offer work-related reasons for the rules and to treat the genders equally -- although that does not mean the rules need to be identical.

Monday, April 9, 2012
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QUESTION: We are a New York corporate employer that has recently hired new workers fresh out of college. Some of our newly hired female employees are not dressing in a business professional manner -- coming to work in tight pants, short skirts and low-cut blouses. I am concerned that the image they are portraying is hurting the company (and themselves) and, quite frankly, sends the wrong message. I'd like to say something to them but am worried that they will claim that I am discriminating against them because of their gender. What can I do here?

ANSWER: It is not uncommon for employers to be concerned about employees -- of either gender -- dressing inappropriately in the workplace. Employers have a legitimate interest in ensuring their employees present the right image to customers and clients. Employers may also simply be concerned about maintaining a professional work environment, free of distracting apparel.

The question is, what can you do about it? First, courts have consistently held that telling an employee to dress appropriately for work is not sexual harassment.

For example, in Courtney v. Landair, 227 F.3d 559 (6th Cir. 2000), the court rejected a plaintiff's claim that her supervisors had sexually harassed her by "caution[ing] her as to her inappropriate attire in the workplace" because she was "showing too much cleavage," holding that "[a] manager's warning, without more, that plaintiff's clothing is inappropriate in the workplace is not sexual harassment." Id. at 564.

Of course, not all employees react well to being told they are dressing inappropriately for the workplace.

In recent years, there has been immense media coverage over claims brought by female employees concerning alleged sexist statements made by supervisors about the appropriateness of attire in the workplace.

In order to best avoid potential suits (whether warranted or unwarranted), employers should take special care to be tactful and professional when addressing this issue. Many people deem attire to be sensitive and, therefore, the message given to all employees must be clearly connected to the work-related purpose.

The best practice -- particularly where there is a more widespread problem of inappropriate employee dress -- is to inform all employees about company expectations as to appropriate dress. This provides protection against an employee's claim that she was singled out for her clothing choices when others were not, which could be the basis of a discrimination claim.

In Schemansky v. Calif. Pizza Kitchen, 122 F. Supp. 2d 761 (E.D. Mich. 2000), the court rejected an employee's claim that she had been discriminated against by being told to wear looser pants to work because all employees had been instructed to wear different pants that complied with the company dress code. Id. at 781.

Going forward, however, it would be beneficial to implement a dress code to avoid future problems. Delineate in the employee handbook exactly what clothing, grooming and other appearance standards are expected in the workplace.

Be specific enough to avoid confusion as to what is and is not permitted in the workplace, but try not to be unduly restrictive. Examples are often helpful. Make sure that such standards are reasonably related to the job.

Along with implementing the actual dress code, it is to the company's advantage to explain the reason for the policy to employees.

Address the need to present an appropriate company image to the outside world and the desire to hold all employees to the same standards. Be prepared to explain the rationale behind the different requirements of the dress code.

This can help employees understand that the policy is not arbitrary or intended as an unnecessary burden.

Of course, implementation of a dress code will not necessarily end all issues related to employee dress. One major source of problems, and potential liability, is unequal treatment under the policy. Supervisors should be made aware that it is very important that the policy be enforced consistently.

Consider a few of the sources of liability that may arise once the dress code is in place:

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Gender-Specific Rules: It is generally permissible for the dress code to contain different requirements for men and women, as long as neither sex is receiving less-favorable treatment.

For instance, a company could face liability if it required women to wear uniforms but permitted men to wear business-professional attire. However, requiring only men to wear a collared shirt and tie would likely be permissible.

In the recent case Finnie v. Lee County, No. 1:10-cv-64 (AS), 2012 U.S. Dist. LEXIS 6679 (N.D. Miss. Jan. 17, 2012), the court noted that "uniform policies and/or grooming standards that vary between genders have been routinely upheld by courts," citing case law from a variety of jurisdictions. Id. at *50.

In that case, the employer's uniform policy required both genders to wear pants, precluding women from wearing skirts, but the court rejected the plaintiff's argument that this constituted gender discrimination.

Religious Discrimination: Certain religions require their adherents to follow specific rules of dress and there is the possibility that a dress code that prevents such individuals from doing so could be viewed as discriminatory.

One frequently litigated, recurring issue is the requirement of certain religions that its adherents wear a head covering. The best approach is to word the dress code in general terms and be prepared to make reasonable accommodations as appropriate, particularly where the rule at issue is not related to health or safety concerns.

Taking a hard line on a provision of the dress code that is not related to a legitimate business concern can lead to unnecessary litigation.

Keep in mind that it is not uncommon for employees to challenge company rules on appropriate dress. Having a clear policy in place, being prepared to explain the rationale for the policy, and applying the policy consistently to all employees can go a long way to avoiding litigation on this issue.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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