Have a Dress Code? Make Sure it is Fair and Consistent

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Employers often have dress codes for their employees, especially if those employees are public-facing and interact with customers. However, like any employment policy, a dress code can cause an employer headaches if the employer does not enforce the policy fairly.

Take, for example, a recent federal lawsuit. A large retailer had a dress code that generally prohibited employees from wearing visible logos and slogans. However, the company did not strictly enforce its dress code and did not discipline employees for wearing clothes that violated the code. This changed in 2020, when a large number of employees started wearing Black Lives Matter masks and the company prohibited the masks on the basis of the dress code. A class of employees from several states sued, claiming the company’s decision to start enforcing its dress code to prohibit the masks was racially discriminatory. The case was dismissed in June after two years of litigation, but not before it cost the company extensive legal fees and widespread negative press.

The case is a good reminder that employers should be careful in implementing and enforcing dress codes. If your company implements a dress code, here are some important questions to keep in mind:

Is your dress code fair? A dress codes should generally be a neutral policy with solid reasoning behind it. For example, a policy against all clothing with slogans and logos would generally be reasonable, and you could state that such clothing does not fit your professional image and that slogans can be distracting and divisive. This position is not playing favorites with any particular slogan or viewpoint and does not single out any employee’s views. However, a policy that specifically prohibited Black Lives Matter logos would be problematic, as it would appear to play favorites with political viewpoints. This could equally be true of policies that prohibited a particular hairstyle or style of clothing associated primarily with a certain racial or religious group because it could make affected employees feel singled out. The best policy is one that does not unfairly single out employees, but sets a fair and neutral set of rules with a clear and reasonable explanation for why the policy is necessary.

Are you enforcing your dress code? Like any policy, if you have a dress code, you should enforce it. The employees in the example case above believed they could wear their Black Lives Matter masks because their employer was not enforcing its dress code. If you enforce your policies, employees are less likely to violate them.

Further, are you enforcing your dress code consistently? If you have a dress code, but only enforce it selectively, you are asking for trouble. If you enforce the dress code for some employees but allow others to violate it without consequences, then employees may believe you are doing so for unfair reasons. They may believe it is for unlawful reasons such as discrimination or they may simply believe you are playing favorites. Even if this does not result in a class action lawsuit like the case above, it likely will create hurt feelings and decreased morale.

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

Barnes & Thornburg LLP is a national, Midwestern-based business law firm that strives for a more entrepreneurial and cost-effective approach both to client service and its own business. Read more Metropreneurial Legal Insights.