Top Ten Tips Disclaimer
Dress codes and grooming standards, even those that distinguish between men and women, are acceptable under EEOC guidelines as long as they bear a reasonable relationship to legitimate business needs and are enforced fairly. Safety concerns are generally recognized as legitimate business needs: in EEOC v. Kelly Services, 598 F.3d 1022 (8th Cir. 2010), the court upheld a temporary staffing firm that failed to refer a woman for a job in a commercial printing factory because the applicant refused to remove her headscarf, which she said she had to wear for religious reasons. Noting that the work environment was full of printing machinery with rollers, conveyors, and fast-moving parts, the court ruled that the employer was entitled to enforce a dress code that prohibited hats, other headgear, and any loose clothing items around the machines.
Employers can always require employees to appear at work with a neat and clean appearance, including combed or brushed hair, bathed, and wearing clean clothes.
A no-facial hair policy for men is permissible under the above guidelines (business image, safety rules, and so on), but an employer may need to make a reasonable accommodation for certain individuals, such as men with pseudofolliculitis barbae (a skin condition common with some minorities) and those whose religious practices may require wearing of a beard. Accommodation questions of these types should be discussed with an experienced employment law attorney.
A no-tattoo or body-piercing policy may be enforceable under the above guidelines. Most employers have a middle ground: allow such items if they do not interfere with the safe operation of equipment or can be concealed with clothing. In the case of Cloutier v. Costco, 390 F.3d 126 (1st Cir. 2004), the court held that a retail sales company did not illegally discriminate against an employee who was told that her facial piercings and jewelry violated the company's dress code, despite her position that her religious belief required her to wear such ornamentation, since the employer successfully showed that it had a legitimate interest in presenting a professional image to its customers, the employee's job as cashier placed her directly before the customers, and it would have been an undue hardship to the company to make an exception for the employee.
Poor hygiene: no employer is obligated to tolerate an employee whose dirty appearance cannot be explained by the needs of the job. It is more complicated if an employee appears clean, but has an odor about him or her that is offensive and cannot be explained by the working conditions. In such a case, it would be best to have a discreet, one-on-one talk with the employee to explore that issue and give the employee a chance to explain what might be going on. If the employee gives what amounts to a medical explanation for the odor, the employer has the right to require the employee to furnish medical documentation of that fact. However, if the employer has 15 or more employees and is thus subject to the ADA, it would be prudent to be prepared to address the issue of reasonable accommodation. If the employee does not claim a medical condition as the cause of the odor, the employer may address the issue through the corrective action process.
Employers are allowed to have one set of rules for employees who deal with the public and another set of rules for employees who have no regular contact with the public. For example, a department store could have one set of guidelines for cashiers and customer service employees, a set for administrative office staff, and another set for warehouse staff. However, the rules should be uniformly enforced as to all employees within each particular group.
If a dress code results in what is basically a uniform that is required for the job, there may be a minimum wage issue if not reimbursing the employees for the extra costs would result in their wages effectively going below minimum wage ($7.25 per hour), and/or below time and a half at their regular rate of pay in case of overtime hours.
In that situation, the company would have to reimburse enough to bring them up to minimum wage and/or the proper level of overtime pay for the time they worked that week, if applicable. That would be an issue only for the workweek in which the required clothes were purchased. The company could, of course, require the affected employees to submit receipts documenting their costs and to stagger the purchases over two or more weeks, in order to minimize the chance that a given purchase would have an effect on minimum wage and/or overtime pay.
Failure to abide by the dress code would be a rule violation - address violations according to the company's corrective action procedure.
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