Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifying religious expression in dress and appearance, how gender-related dress codes have evolved over time, and what clothing and grooming items are more susceptible to claims of employment discrimination.
Dress Codes in General
In general there is no federal law governing employee dress codes. Employers may implement whatever dress guidelines they feel are appropriate; however, it is when these dress codes violate a law as a result of implementing such a dress code. For example, an improper dress code policy may discriminate on the basis of gender, race, religion, disability, or any other federally protected status in direction violation of Federal law.
There are lots of different dress code policies that are completely legal. Though there can sometimes be challenges on defining the difference between "business casual" and "smart casual." (Apparently there is a difference).
Here are some examples of successful dress codes:
Starbucks has had a very definite dress policy which has just recently changed. No longer must Starbucks employees choose between those plain black and white tops. The company is now allowing and in fact inviting its baristas "to shine as individuals while continuing to present a clean, neat and professional appearance." Starbucks says that a range of shirt colors and patterns are now permitted. Apparently though, there are still some significant restrictions leaving them with a color range that is within the grays, navys, browns, etc.
The 11th Circuit Court of Appeals dismissed a lawsuit against a company that refused to hire a woman because she would not cut her dreadlocks. In 2016, a Federal Appeals Court ruled that banning an employee from wearing their hair in dreadlocks is not racial discrimination. In a 3-0 decision, the 11th Circuit Court of Appeals dismissed a cased brought by the Equal Employment Opportunity Commission against a company that refused a hire a woman because she would not cut off her locs. In this case the court made the determination that the employer did not intend discrimination. This is not a case for employers to rely since the road to hell can be built with good intentions. The court was criticized by legal analysts for not taking into consideration the disparaging impact such a policy would have against African Americans.
Ku Klux Klan
The Church of the American Knights of the Ku Klux Klan came at issue when a man was prohibited from showing displaying the “Fiery Cross” tattooed on his arm. Mr. Swartzentruber alleged that the “Fiery Cross” was one of seven sacred symbols of his religion. This argument failed and the court ruled in the employer's favor for its right to require the employee to cover his offensive tattoo (even though other employees were allowed to display their tattoos.
Religious Related Dress Code
We covered not too long ago the Supreme Court case that sided with the Muslim girl who was denied a job over head scarf. In that case, her hijab was not in compliance with the "Look Policy" of Abercrombie and Fith and that the company wanted to avoid having to deal with her anticipated request for religious accommodation.
In another case, police officers were allowed to wear beards and blue turbins.
Title VII is a Federal Law that makes it clear that no adverse employment decisions made based on forbidden motive, including the motive of discriminating against a certain retaliation. This includes that act of segregation. In other words, you can not just put certain races in the back, away from public viewing, for example.
Gender Related Dress Code
Gender related dress codes are an old issue coming into a new light in the last few years. Just this year, men wore skirts across several countries because they were not allowed to wear shorts even in high temperatures. The Ladies Professional Golf Association (LPGA) was accused of “slut-shaming” female players after introducing new rules that crack down on players’ choice of clothing. In the capital, congresswomen dressed in sleevless shirts to stand against what they felt were antiquated and old fashioned dress code requirements for women on Capital Hill.
A landmark case, Jespersen summarizes both the current law governing gender-specific dress codes, as well as the type of scenarios in which differing dress codes are used. The general conclusion from Jespersen is that when an appearance policy does not disparately impact one sex or impose an unequal burden, it is valid under Title VII unless the employee can further show intentional discrimination.
NASIR: Welcome to the Legally Sound Smart Business!
My name is Nasir Pasha.
MATT: And I’m Matt Staub.
Two corporate attorneys here with Pasha Law.
NASIR: Yeah, and this is where we cover business in the news and add our legal twist.
Welcome back to our next episode. It’s been a little bit of time here but we’re ready to just jump into a great topic. We’ve always discussed how Matt is just an expert in dress and so this is just right up his alley. Really excited for today.
MATT: Big fashion person here. I know a lot about fashion. I’ve never had any issues with any dress codes so I think we’re well-suited – no pun intended – for a good episode here.
NASIR: Good one.
So, dress codes in the work force and the workplace from an employer business perspective, it’s relatively straightforward, but I really feel, in the past two, three, even four years or so, there’s definitely been some change in how the same law has been applied and that’s specific to gender-based dress codes and I think that’s only the real change.
And so, how we’re going to approach this episode is we’re going to start with the basics and kind of go over some old law tenets and kind of go from there and just talk about how things are changing now and how employers can address these issues today which I think is becoming increasingly more difficult.
MATT: Yeah, you’re exactly right.
The implementation has gone the way of how a lot of things have gone the last five, ten years. People have become a lot more – I don’t want to say “touchy” but – sensitive about things or wanting to raise an issue about things. Dress in the workplace has been a big part of it. You can look at all the lawsuits that have been filed, some of them very public, for companies.
Honestly, it’s probably something that people wouldn’t even think twice about ten, twenty, thirty years ago. But that’s not the point. It’s still the law and employers still have to follow the law. Like you said, we’re going to try to put employers in the best place possible to not have any lawsuits come down their way.
NASIR: Dress codes have been around for ages. I mean, this is nothing new for most employers. Everywhere from Starbucks has their uniforms and their dress codes to even gas attendants have their uniform with their nametag on it or the workplace where you’re supposed to wear whether it’s business casual or formal wear or casual wear or casual Fridays. These are all pretty familiar terms. Well, at least I had to look up some of the differences between business casual and smart casual. I don’t know if you caught those differences.
NASIR: I guess the difference between smart casual and business casual is that, somehow, it’s a little bit of a step up for business casual. I guess you wear a vest. If you want to look really smart, you wear a tie maybe once in a while.
MATT: If you have to ask, then you’re not qualified enough to be smart casual but that’s fine.
Here’s the interesting thing to me. It’s kind of been two different things at play. There’s been these rules and laws that have been in place that maybe haven’t always been followed or haven’t been implemented or haven’t been litigated even. They’ve always been there. And then, you also have kind of a more casual dress with these younger generations that are coming through as well.
It’s kind of a combination of there’s rules in place and they’re sometimes more strictly enforced but you also have the actual employees who are out there who want to dress more casual aren’t being allowed to dress more casual. It’s a very tough spot for employers because they need to know where to draw the line or I guess where they can legally draw the line on what’s allowed to be prohibited from being worn or how someone’s dressed as opposed to where we can try to step in and enforce these laws – both from a federal and state standpoint.
NASIR: Yeah. And so, from a federal perspective to be more specific, there’s no actual law that says how an employer may have a dress code. In fact, it’s pretty open. Employers can implement in general whatever dress code they want so long as they do not discriminate. From a federal perspective, that’s based upon gender, race, religion, disability, or any other federally protected status.
And so, just to be clear, it’s not the actual dress code that’s an issue. It’s if the implementation or the impact of the dress code causes discrimination. For example, Starbucks – I think I just mentioned – had a pretty strict dress code. They had it so that it was kind of what they would call a “drabby chic” kind of color scheme of what the baristas were supposed to wear. Only until recently now, they’re allowing the so-called individuals to shine and allow them to wear a little bit more different color instead of just the plain black and white tops that they may have been required to wear in the past. That type of policy under the law is totally acceptable and there hasn’t been any kind of objection that that somehow discriminates against any protected class.
MATT: Yeah, and contrast this to a policy against wearing backwards hats or hoodies because that’s not going to be appropriate for the workforce but, at the same time, it’s not discriminating against any of these protected classes so they’re allowed to kind of show, I think of it as The Office Space Flair, right? It’s a little way to show their personality but there is a line that’s drawn and the reason they can’t wear certain things like backwards hats, for example, is it’s not discriminating against any sort of class.
NASIR: Precisely. So, when this federal law comes down – by the way, from a state perspective, the analysis is pretty much the same except some states like California expand the number of classes to other statuses like your sexual orientation or your family status and so those are some things that can come into play as well.
One of the two main things – and we’ll talk about this in a little bit more detail but just to kind of give some quick examples – is religion and race. And so, as an example of where race discrimination was not held to come into play is where an employer had a dress code where they were requiring – I can’t remember if it was an employee or prospective employee – from wearing their hair in a way that had dreadlocks. The argument was that this employer is discriminating against a certain race which is African American who typically have dreadlocks. And so, therefore, this is discrimination for this dress code. In that instance – this was back only just a year ago so it should still be good law – the Eleventh Circuit dismissed the lawsuit saying that the company that refused to hire a woman because she wouldn’t cut her dreadlocks was acceptable and that was a unanimous (3-0) decision.
MATT: Along similar lines, there was an instance of an individual who had the church of the American Knights of the KKK which is the fiery cross tattooed on his arm. The employer wanted him to cover that up. That was not found to be discriminatory on the basis of any sort of religion. The flip side of that being at a Red Robin and – I believe it was a woman – had tattoos on her wrists that were religious-based. They were trying to make her cover those up and that was discriminatory because it was basically purely religious-based and it wasn’t allowing her to display that and that was discriminatory based on religion.
NASIR: Yeah, you can see this is not a very clear issue when it comes to actual discrimination at play. It’s not just about whether the dress code sounds good or not because it’s usually going to have some kind of purpose. Hiding tattoos in a lot of different workplaces would make sense for a lot of people and depending upon what the position is. Typically, if you can rationalize the purposes for it, it’s going to be allowed. But, if it’s connected to some kind of illegal purpose, then that’s where we really get into trouble.
Let’s talk about religious-based issues when it comes to dress codes. I think the Supreme Court actually handled it. It was probably two or three years ago. We actually covered it in our podcast which was a Supreme Court case where Abercrombie & Fitch actually refused to hire somebody because they were wearing a headscarf. There were some interesting facts in that in the sense that they actually found out that because they didn’t want to make a religious accommodation because they didn’t allow headwear was part of the reason why they didn’t hire that person. Of course, reasonable accommodation, it’s pretty reasonable to allow your workforce, especially in a retail environment, to wear a headscarf, especially for religious reasons. And so, the Supreme Court was pretty tough on Abercrombie. I remember even the late Justice Scalia even described it was, “This is a pretty easy case,” if you recall.
MATT: Yeah. You mentioned it’s not always obvious. I think this is a case where it was, I mean, not just to say because Scalia said that but it is pretty obvious. To get all the way to Supreme Court to have one of the justices say that is a little bit embarrassing, I suppose.
I mean, you’re exactly right. It dealt with reasonable accommodation for Abercrombie and, you know, basically, the test is for these religious-based practices is they need to provide a reasonable accommodation unless it would cause an undue hardship on the employer. In this case, wearing the headscarf is not an undue hardship for the employer.
If anyone’s walked by an Abercrombie, everyone knows exactly what they were trying to do here. They have a very distinct way they want these people to look that work there. I mean, I’m not going to directly make any assumptions but it seems to me that this individual, this woman didn’t fit the “style” that Abercrombie typically has with the people that work there. If they would have just followed the law, I mean, it’s just a reasonable accommodation just allowing her to wear that. There’s no undue hardship here.
NASIR: Yeah, and another example is the NYPD. There was a case not too long ago about Sikh individuals that are required to wear turbans were, at first, not permitted. Part of their dress code, a turban is not permitted as a police officer. And then, they were allowed to so long as it was the color blue or matched the uniform. Same with a beard or facial hair. That also came into play as well.
MATT: I’m glad you mentioned that because it’s not always obvious. The case with the headscarf, that might be a little more obvious to employers or someone from the outside looking in, but it can be a little bit more minute than that. For example, like you said, facial hair, somebody might have a beard and that could be a purely religious reason – they don’t cut their facial hair – and the potential employee might walk in and do the interview. The employer might refuse to hire them because they have this beard, not even knowing that this is not appropriate. There’s other religions that have certain types of hair that they have – you know, I‘m not talking facial hair anymore, I’m talking about hair on top of your head. I wish we could give some sort of directed guidance on this but I guess what we can say is just because somebody looks a certain way that you’re not used to – you being the employer – don’t assume that they’re looking that way just because they like it. It could be a purely religious reason.
NASIR: Keep in mind, having the dress code in itself may not be the issue. It’s the implementation in the sense that, let’s say you have a no-facial-hair policy, if no one brings up the fact that, “Hey, I need facial hair for religious reasons,” you’re on pretty protected ground because the religious accommodation does require some kind of communication or notice on behalf of the employee, if there’s no kind of engagement in that.
For example, in the Abercrombie & Fitch case, there was a discussion that while the employee didn’t even enter into that reasonable accommodation process between employer-employee because they weren’t even hired. But, of course, the argument is, “Well, you didn’t even allow the employee to do that. In fact, you assumed that because they have a headscarf that this is a no-go and not because it’s assumed that she’s wearing it for religious reasons, she’s not going to take it off. Therefore, it’s not permitted.”
But, you’re right, with facial hair it’s different because you have to look at the motivations behind the facial hair and something that typically can be seen as something secular as having tattoos or having facial hair, you do have to dig a little bit more deep on that.
MATT: We keep talking about reasonable accommodation. It’s not just that. It could be based on disparate treatment, retaliation as well. Let’s say you have somebody, employees in there, I’m trying to think of an example. I probably can’t because I’m not discriminatory in nature but somebody comes in and they’re wearing – I’ll just use the headscarf example or maybe it’s something they only wear during certain times of the year, religiously-based – you can’t retaliate against them by firing them or – even worse – doing some sort of job segregation, putting them somewhere else. It’s not just reasonable accommodations. There’s other parts that go into it as well.
NASIR: Yeah, segregation is a good example, too. I’ve seen that personally where, “Hey, we’ll hire you, but you have to be in the back because we don’t want to show people that we hire Muslims or some other easily identifiable religious group or even racial group or what-have-you.” That’s entirely inappropriate. You also mentioned timing, too. We all know that, in general, when it comes to religious practices, there’s a lot of people that kind of go up and down as far as their level of practice. And so, they may practice religion one day and not the other. But just because they do that doesn’t mean that they don’t have that same protection. And so, again, on one hand, this is old law and stuff. But, if you know the rules and you kind of just keep yourself familiar and aware of what’s being asked and the sensitivities of different minority religions or religions in general, then you should be on pretty safe ground.
MATT: A couple more things I want to say about the religion aspect, real quick, it also goes unsaid – even though I’m saying it now – workplace harassment based on religion is obviously a no-no here.
Also, we’ve been talking kind of broadly just from the federal standpoint because a lot of these cases are brought in federal court if there’s a lawsuit filed. The test is a little bit more narrow than California, depending on what state you’re in, obviously.
Under Title 7, it’s basically the reasonable accommodation standard. If it’s reasonably possible without undue hardship, the burden from the federal standpoint is de minimis burden on the employer. In California, it’s actually the employer has to demonstrate significant difficulty or expense. That’s something to keep in mind for those employers in California – one of the states we practice in. You know, obviously, it’s a much higher burden as “significant difficulty or expense.” That’s going to be pretty difficult to show if you want to go that route of trying to say that you’re reasonably accommodating one of your employees based on religious beliefs.
NASIR: Of course, that’s pretty typical for a California law to kind of take that perspective.
So, we kind of talked about religious-based and we kind of touched on racial. That’s a little bit more from a racial perspective, that’s a little more straightforward, but what’s interesting about all these is that there is a level of stereotyping that comes into play as to whether or not it is discriminatory and gender discrimination is perfect for that because I would say that the law I think is a little inconsistent in this area in the sense that, on one hand, there is a level of tolerance of having gender stereotyping of dress codes. In other words, the law tolerates if you have a dress code where men are supposed to wear ties and women are supposed to wear dresses, up to a certain extent, especially now when it comes to so many gender issues are now entering the law these past few years that this line of what is allowed and not allowed is starting to move quite a bit. It’s something that you should be very cognizant of if you do have any kind of strict dress code in this regard.
MATT: You’re exactly right. If we’re talking a couple of decades ago, it was really probably no questions asked. “This is how the men are supposed to dress; this is how the women are supposed to dress. If you don’t like it, then we’re going to fire you.” That’s not going to fly in 2017. I would say, in my opinion, the gender-based dress code issues are probably the hottest topic. I know we talked about a bunch of religious ones but especially when you factor in the transgender that’s coming into play as well, that’s getting implemented in laws. It’s definitely the focal point if you want to hone in on one of these topics in terms of the dress code.
NASIR: Yeah, absolutely.
And so, I want to talk about one case, it was back in 2006 and I think this case is very telling as to where the law is still even today but also gives you indication of where it’s moving and that was in 2006. It was a person named Jespersen and she worked for Harrah’s Casino out in Nevada where she was fired after she refused to follow a company policy requiring women – and only women – to wear makeup while at work. This was part of their grooming and hygiene policy. It would be considered part of their dress code and they had to wear white button-down shirts, black pants, black vests. But, for this particular woman, she felt that the requirement for makeup just didn’t fit her personal style. What did she say?
MATT: Conflicted with her self-image.
NASIR: Her self-image. And so, she refused and she was fired. Of course, shortly thereafter, she filed a suit under the same Title 7 that we discussed about based upon discrimination based upon gender.
MATT: Yeah. Ultimately, she ended up losing. Basically, there was – like you said – the test that was formed. Essentially, it’s okay to have different dress or grooming requirements for men and women so long as doing so does not place an unfairly heavy burden on either sex. That is the case here. It’s not placing a burden on one or the other. Well, let me dial that back a second. She also didn’t present any evidence. She said it did unfairly burden her because the makeup policy was degrading and demeaning but she didn’t really present any evidence as to how this placed unfair burden on females as opposed to males. Maybe there was something there – who knows? I still think no but that’s really the test that has come out of this and has dictated a lot of these gender-based discrimination cases.
NASIR: You hit on that evidence thing. I don’t want to get too in the weeds with this legal stuff but it is an important issue. Because she didn’t present any evidence to support the undue burden doesn’t necessarily mean there wasn’t evidence out there. She just didn’t present it.
And so, the court kind of left it open and this is where I’m kind of getting at where things may be moving in the sense that the court left it open that, if maybe down the line a plaintiff can show that there was an undue burden and that determination is somewhat dependent upon what the evidence is and who the factfinder is – which could be a judge or a jury – and I could easily see cases where even with the similar to same fact pattern, if not now, later coming down in a very different way.
I mean, this makeup issue in particular is not new. I was researching this article for this podcast. In 2014, there’s a whole scathing blog post of the person who just talks about her experience of her boss wanting her to wear makeup because whatever reasons the boss said, it was a little demeaning, but she just goes on. And so, this is going to be a recurring issue and I can definitely see how there might be some pushback. Of course, it doesn’t stop at makeup.
MATT: Just real quick on this, too. You said this was 2006. I don’t think there’s any question. If the females are required to wear makeup, that is a burden. It’s just a matter of how significant the burden is. I think every year since then, the gap of what the burden is is shrinking and getting smaller and smaller. We’re talking eleven years later. If this case was filed today, I don’t know if we would even have the same result. That might be significant enough of a burden for her to show. To go on your cases, the other one you mentioned, that was a little bit different. I think the quote was, “You need to wear makeup every day to work because I don’t think you look presentable or professional without it.” Obviously, that’s a problem if you say something like that. It’s a little bit different story but…
NASIR: That’s just mean.
MATT: It’s a whole other issue that the employer is going to have to deal with.
But, yeah, like you said, it comes down to standards, whether it places an unequal burden on the opposite sex, I mean, that’s how a lot of these are going to come down. Like you said, it’s not just makeup. It can be dress as well. We’re talking you can’t prohibit women employees from wearing pants, for example. That’s one example. If you’re treating them unfairly or you’re burdening just the females and a lot of these are just burdening the female gender, unfortunately. You don’t see a lot of the males ones. But, occasionally, you do.
NASIR: Yeah, I think they’re calling it the male skirt rebellion of 2017. To kind of make it simple here, because of certain dress code policy and because it’s very hot in the summer amidst of especially a heatwave, certain men in certain groups started wearing skirts instead of pants. I think other groups like bus drivers started getting into it. On one hand, in protest, and I think there was a little element of just being funny about it but there was definitely an element of protesting because, frankly, I mean, I understand it may be warm but wearing pants isn’t, you know, it’s not like you’re going to die but it does add a level of discomfort. And so, depending upon what you do, ultimately, what ended up happening after the protest in some cases, they started allowing the employees to wear – I don’t know what they’re called – they said three-fourths shorts – basically, shorts that go past the knee. But, yeah, we can post a link. It’s just a bunch of men taking pictures of themselves in what would traditionally be considered female dresses.
MATT: We talked about, from the gender perspective, grooming and dress. It can create an unequal burden on one gender in terms of expense, time, preparing for work, et cetera. What about uniforms? I think, oftentimes, you’ll see, going back to what you said earlier, you’ll have uniforms and, oftentimes, the male uniforms will be different from the female uniforms.
NASIR: Yeah, and it’s kind of the same issue again. There’s this tradition – whether we agree with it or not – that really tolerates different roles between men and women. Even what people would consider stereotyping and that could also apply to uniforms as well.
MATT: Yeah. And so, what I’m getting at here is employers can’t have a uniform policy which requires women to wear dresses or skirts. Another thing, too – we talk about gender – one thing I want to touch on before we get done here is we talked about all the discrimination cases but one class I don’t think gets mentioned a lot in the dress code is dealing with disabled employees and this connects to uniforms because you can’t have a uniform that’s difficult for them to put on or take off because you’re not providing them reasonable accommodation for the disabled employees. So, I think that’s a very small subset that probably gets overlooked a lot but it does have to deal with this uniform aspect so I wanted to put that in there.
Going back to the uniforms, again, it has to be consistent. You have to treat both genders equally. But, then we get into the topic of uniforms for a specific business or a specific purpose. I think the classic example would be the Hooters or the Tilted Kilt or something like that.
NASIR: That’s a little bit different. It’s still the same issues apply except that there’s something called a bona fide occupational qualification or – I like to call it, like everybody else – BFOQ because it’s too hard to remember. That’s its own category and so it’s a common question. “How does Hooters and these other – I forget what the type of restaurants, the category – those types of restaurants, how do they get away with those kinds of dress code standards?” The reason is it’s not that far from being – I mean, this is a little crass but – to be a strip club or some kind of form of entertainment or a dance club where the waitresses are part of the presentation of the restaurant in itself.
MATT: I think the way to put it is it has to be only where the sex classification is required to preserve the essential nature of the business. Hooters, it is what it is. It’s in the name. That’s the perfect example of preserving this essential. Now, we can debate how essential this is in general but, from this business’s perspective, this business model, it’s essential to their model and that’s how it’s going to fit this exception.
NASIR: You’re right, though. You’re kind of pointing out a peculiar kind of instance. Where does the food come in and all this? Is the food an essential part of this? Are they both essential? It does make it kind of interesting. And so, it kind of shows you the extremes of these dress codes. On one hand, pretty much, you can require whatever you want for the women at Hooters to wear. But, when it comes to an office, there’s no bona fide occupational qualification that requires women to wear something completely different than men. That kind of dress code wouldn’t fly. It would definitely create an undue burden between the sexes.
MATT: Yeah, the bottom line here is a dress code policy is overtly based on sex is illegal on its face. I mean, this is the exception to it.
NASIR: I think that’s a good way to approach it. But, at the same time, I’ve just seen too many cases where, from a legal analysis, they may not approach it that way but, I think, from an employer perspective, you should assume that, if you are having two different types of uniforms or dress codes that are different between genders then it’s probably not the best approach and you should consider kind of reviewing that and making sure because, like I said, there are cases that do allow dress codes that are different for men and women. It’s just most of the time and I think where the trend is going, it’s probably not a good idea.
MATT: Here’s the thing, too, that’s kind of unfortunate from the legal perspective. The law is still very grey, like we said from the beginning, unlike the Jespersen case, a lot of these get settled out and we don’t get an actual answer. And so, even with the case we talked about, not to get too deep in the law, like you said, evidence just wasn’t presented. It could have gone the other way if it was.
With that case, it’s a little bit different but a lot of these cases, the lawsuit gets filed, usually on the federal side and there’s some sort of settlement. And so, that’s great for the employees but we don’t have answers.
As an employer, it’s still kind of difficult to navigate your way. But, like you said, treat it equally, be consistent, and I think – gender or not – the bottom line is in your employee handbook, if you have one, for the dress code and the grooming policies, it needs to be reasonable requirements for all employees just to make sure it’s lawful.
NASIR: Yeah, and I know that a lot of employers have stricter kind of standards than others – whether they’re trying to create a certain environment for their workplace or they’re trying to have a certain presentation to their customers – just remember that there are a lot of legal pitfalls to all this. You’ve got to have your dress codes reviewed by an attorney – not only the dress code itself but how the dress codes are implemented when someone challenges the dress code. In other words, as we talked about, a perfectly legal dress code can become illegal depending upon who it’s being applied on.
And so, it’s not just about writing it in a handbook and then forgetting about it.
MATT: I don’t remember if you mentioned this or not but the motivation behind why the employee is choosing to dress or have the grooming the way they are, that’s the key. You could have two people look exactly the same and, if you take an adverse action against them, one could be legal and one could be illegal. That’s the difficult part for employers here.
NASIR: Yeah, and that’s a good point.
If you’re not going to hire somebody or if you’re going to fire somebody or reprimand them or even kind of demote them in any way based upon their nonconforming to the dress code policy, speak to an attorney beforehand.
MATT: That’s always our capping advice here at the end to cap off the episode. Just talk to an attorney.
NASIR: Yeah, thanks for joining us everyone! I mean, this is our episode. We covered pretty much everything dress code. Definitely let us know if you have any more specific questions. We are taking questions and suggestions for future topics so feel free to send that in as well.
MATT: Yeah, more Ultimate Legal Breakdowns on the way.
NASIR: Thanks for joining us!
MATT: Yeah, keep it sound, keep it smart!