Dress Codes Evolve Following Pandemic

Allen Smith, J.D. By Allen Smith, J.D. September 21, 2022

​As more employees return to worksites, some employers are rethinking their dress codes. That doesn't mean giving up dress codes entirely, but handling violations can be tricky.

"COVID changed the workplace, and people tend to dress more casually now," said Sarah Pawlicki, SHRM-SCP, an attorney with Eastman & Smith in Toledo, Ohio. But it's important that casual dress not go too far, she added.

"Many employees are resistant to returning to the office, so to encourage that return, employers are choosing to relax dress codes," she said. "However, it is important to remind employees that what is fine in your home office may not be fine at the office."

Don't be afraid to update the dress code as company culture changes, said Emily Tichenor, an attorney with Polsinelli in Denver. "For example, if a company required formal business attire prior to COVID, but client expectations for employee dress have changed, consider whether allowing a business casual dress code makes sense," she said.

What's Inappropriate Attire?

In a professional environment, "it is important that employers adapt to the shift toward hybrid work, while still ensuring that employees present a clean, neat and professional appearance that is acceptable to clients and reflects the company's image," said Rudi Julius, an attorney with Thompson Hine in Atlanta.

Appropriate and inappropriate attire depends on the workplace and company culture.

"It would be just as inappropriate to wear a T-shirt and jeans to work in a conservative financial organization as it would be to wear a suit and tie to work on a manufacturing production line," Pawlicki said. "In all workplaces, it would be inappropriate to wear anything containing vulgar, graphic or offensive language."

Inappropriate workplace attire might distract employees from their tasks, resulting in a less productive workforce and a potential dip in employee morale, noted Justine Abrams, an attorney with Ogletree Deakins in Morristown, N.J.

"Professional employees should still be professional even when casual," said Michael Elkins, an attorney with MLE Law in Fort Lauderdale, Fla. Employers should provide employees returning to worksites with a copy of the current dress code so there is no confusion, he added.

Handling Dress Code Violations

Dress code violations should be handled in accordance with the industry, job category, content of the employer's dress code policy and discipline policy, Abrams said.

For example, if a construction worker who is required to wear composite toe boots shows up to a worksite wearing flip-flops, it might be prudent to send the worker home because allowing the employee to work under those circumstances presents serious safety concerns, she said.

On the other hand, if a bank requires its tellers to wear suit jackets, sport jackets, blazers or cardigans, and a teller shows up to work once wearing a button-up shirt without a jacket, that may be less egregious, she noted. The employer might permit the violation for one day, provided the employee is properly advised of the infraction and the requirement to comply going forward.

"Violations should be promptly and appropriately addressed and documented by the employer, and expectations should be shared openly with the employee," Abrams said.

Elkins cautioned that "unless the dress code violation is obvious or egregious, it's generally a good idea for employers not to be too heavy-handed."

Employers should avoid embarrassing the dress code violator, Julius said. "When possible, address the violator privately and avoid criticism or judgment," she said.

Pawlicki recommended having a second company official in the room for the discussion when having sensitive conversations.

Avoid Unlawful Discrimination

"Clothing can be a wonderful way for employees to express their individuality and to start dialogue regarding diversity," Pawlicki said. "Employers should embrace that opportunity, recognizing that company culture should be the guiding determination rather than traditional notions regarding gender or race."

"Don't establish, maintain or enforce dress codes or grooming policies in a manner that discriminates against protected characteristics," Abrams cautioned. "This can be a tricky rule to follow, as many seemingly neutral dress codes and grooming standards actually carry exposure to discrimination claims."

For example, requiring women to wear skirts in the workplace while allowing men to wear pants may be gender discrimination under Title VII of the Civil Rights Act of 1964, she added. This is particularly true for employees who are transgender or gender-nonconforming, Abrams said.

Managers and HR should address dress code violations and should do so in a uniform way, she added. Otherwise, the employer risks exposure to discrimination claims.

"Some employers have relaxed their dress codes post-pandemic. If an employer is going to be lenient with Employee A about the dress code, then the employer must be prepared to offer the same leniency to Employee B," she said.

"There may be some individuals whose religious beliefs or disabilities may justify reasonable accommodations, meaning slight deviations from the policy," Abrams said. Certain individuals may claim, for example, that a blanket policy prohibiting all displays of any tattoos in the workplace constitutes religious discrimination.

"Hear the employee out," she said. "Don't rush to judgment."

Two more caveats: First, employers cannot stop employees from displaying union insignia or wearing union apparel, unless they can prove a valid reason for the restriction, a recent National Labor Relations Board case showed.

Second, public employees may have more rights to express themselves through their attire due to First Amendment protections that apply to them. 



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