Because styles and new thinking about what’s acceptable attire in the workplace are ever changing, HR professionals continue to struggle with dress codes. Expectations of professional appearance differ among, and even, within professions. Some HR pros have found that allowing supervisors or department heads the ability to establish and enforce dress codes works better than a one-size-fits-all approach.

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Supervisor involvement
Cynthia N. Gardiner, vice president and human resources manager for First Bank in Ketchikan, Alaska, says at her workplace, they’ve decided against a “wear this, not that” kind of policy with a few exceptions. Instead, they rely on supervisors in the various work groups to call some of the shots.

Gardiner posted an excerpt of her employer’s policy on the Employer’s Forum on the HRHero.com website. Their policy reads in part: “During business hours or when representing the bank, you are expected to present a clean, neat, and tasteful appearance. You should dress and groom yourself according to the requirements of your position and accepted social standards. This is particularly true if your job involves dealing with customers or visitors in person. Your supervisor or department head is responsible for establishing a reasonable dress code appropriate to the job you perform.”

That policy allows supervisors “to impose slightly more strict or more relaxed requirements, whatever they feel is most appropriate for their department,” Gardiner says.

Renea Dennison, manager of financial services for Century Health Solutions, Inc., in Topeka, Kansas, weighed in on the forum discussion by emphasizing the importance of discussing the policy with supervisors. “Your top management should be talking to the supervisors about this too. If the supervisor has to go to the trouble to call someone in and even possibly send them home AND they know their own boss is noticing their department looks unprofessional and it might count against them in their reviews, they will usually get in line quickly,” she says. “If all they have to do is turn it over to HR, they are much less likely to follow up.”

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Legal considerations

Employers choose to have appearance codes because they want to present a professional image, but appearance rules also have other purposes, including health and safety implications. Robert R. McKearin, a firm director with the law firm Dinse Knapp McAndrew, recently told a group of HR professionals that the employer’s goal should be to have a policy that can be defended if a dispute arises. It’s important to put an appearance code in writing, McKearin said, “to get yourself to think about what you want to have in the code and why — and the why is very important” since employers need legitimate business reasons for their rules.

Various laws affecting employment such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the National Labor Relations Act (NLRA) and state law counterparts to those federal laws “establish the employee rights that sometimes butt up against an employer dress code,” McKearin says.

Sometimes an employee wants to stray from the dress code because of religious or other reasons. “If there is this conflict — this tension — between the employee’s rights and the employer right to establish an appearance code, then we get to the issue of accommodating those differences,” he says. If an appearance code dispute centers on religion or some other characteristic protected in law, the employer and employee need to understand each other.

“It’s crucial that the employer and the individual who feels that their rights are being infringed upon get involved in this interactive dialogue to discuss what exactly the problem is and to discuss ways around the problem,” McKearin says.

When employer and employee can’t come up with a solution, it then becomes a test of whether the employee has a legitimate position and, if so, “the issue becomes whether or not the employer would encounter a hardship in complying with the employee’s request or fashioning some other kind of accommodation,” McKearin says. Many cases end up focusing on the hardship question, he says.

“If someone raises the religious card or claims racial discrimination or some other protected category that they say makes this a fundamental right that the employer cannot infringe upon, your antennae need to go up,” McKearin says.

Robert McKearin is an editor of the Vermont Employment Law Letter and a member of the Employers Counsel Network