One of our employment counsel recently noted that they have seen many workplace dress codes that are problematic because they distinguish on the basis of gender. In this article, we discuss employer rights when it comes to restricting employee appearance and attire, as well as some best practices to avoid gender discrimination in corporate dress codes.
Workplace Dress Code Law in California
Generally speaking, employers are permitted to impose reasonable restrictions on what attire employees wear in the workplace, as well as their appearance. However, these policies can become problematic under the law where they (amongst other things):
- Impose a greater burden on one gender than the other;
- Open employees to sexual harassment;
- Adhere to gender stereotypes;
- Discriminate against those with certain religious beliefs or medical conditions;
- Prohibit women from wearing pants;
- Do not allow for gender-identity expression; or
- Are not uniformly enforced for all employees.
Workplace Dress Code Best Practices
The above is a synopsis of the existing law. However, what the law requires and what workers and consumers expect often vary wildly. So, here, we’ll outline some best practices.
Consider a gender-neutral dress code.
Gender-based stereotypes in dress codes are falling out of favour. In the context of the Great Resignation, alongside more Gen Z workers entering the workforce, it’s time to consider adapting to the growing number of workers for whom workplace diversity is an important issue.
What this might look like in practice is setting a dress code (for instance, business casual), and outlining what is permitted and what is not without referencing gender.
Consider implementing a flexible policy.
Workers have just spent the better part of two years jumping on Zoom calls wearing slippers and a business shirt. As (some) workers return to the office, employers might consider allowing employees to wear casual attire in certain circumstances.
For instance, you might allow workers to dress in casual clothing on days where they do not have any client-facing engagements. Meanwhile, on days where they need to attend meetings or other professional engagements, formal business attire might be required.
Avoid reference to specific hairstyles.
It is no longer acceptable for employers to limit men to short hairstyles, and it’s illegal to require women to have long hair. Similarly, Title VII and prohibits employers from preventing African American women from wearing their natural hair. While the California Fair Employment and Housing Act prohibits discrimination based on religious grooming practices, which includes hairstyles.
A better practice than specifying acceptable hairstyles is to simply require hair to be neat, clean, and well-groomed. Any ‘enforcement’ of this policy should be respectful of differing cultural and religious practices in terms of hairstyles and differing hair types resulting from race and religion.
Of course, all of the above best practices should be carefully considered in light of any health and safety requirements. Where health and safety concerns exist, employers should consider whether there are any reasonable accommodations that could be made to overcome them.
If you need assistance developing a gender neutral dress code, reach out. Our employment attorneys would love to assist.
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