Question:
We would like to create a summer dress code, so our employees do not have to wear suits during the hot summer months. Are we allowed to set a dress code and say what is and is not permitted (e.g., no t-shirts with profanity, nudity, etc.)? Also, we want to allow female employees to wear sandals, but require male employees to wear shoes or sneakers. Is this permissible?
Answer:
Employers generally have the right to establish and enforce a dress code policy as a condition of employment. Because federal and state laws generally do not directly govern these policies, employers have a lot of flexibility in creating an appropriate dress code for their environments. Typical dress code policies may include, for example, an organizational philosophy, appropriate attire, prohibited attire and how the policy will be enforced.
Of course, an employer’s policy should not violate discrimination laws. For example, a gender-neutral dress code policy may help avoid discrimination claims on the basis of sex. In this regard, a policy should not require all male employees to wear closed-toed shoes in the summer while allowing female employees to wear open-toed sandals. Whether sandals are permitted or not should be applied to everyone or, at least, everyone who is similarly situated. This means that an employer can have dress code distinctions based on, for instance, departments or divisions, but the distinctions would need to apply to everyone within such departments or divisions.
Employers should also keep in mind that they may need to make accommodations due to, for example, an employee’s religious beliefs or disability. It may be beneficial for employers to work with local counsel when drafting a dress code policy to ensure it satisfies the employer’s objectives and complies with applicable federal, state, and local laws.