To be focused on personal appearance3/24/2023 But the First Amendment does not apply to private-sector employers, and employers must be aware that, although t-shirt designers and employees can be a creative lot, it is the employer that has the obligation to ensure a workplace free of harassment and violence. Although the Confederate flag can stand for many things apart from support for slavery, and its wearer might have no intent of conveying a message that he or she thinks slavery was good, a reasonable African-American (the standard for illegal harassment) would understandably interpret the flag as offensive.ĭealing with the t-shirt slogan/graphic has become a burgeoning problem for some employers, who find themselves debating employees about whether their dress codes improperly limit their employees’ free speech rights. A t-shirt with the Confederate flag, for example, should not be permitted because it violates the company’s anti-harassment policy. Likewise, t-shirts are increasingly common in the workplace, but employers need to be careful to make sure that employees’ shirts do not have graphics or words that could reasonably offend someone based on a legally protected classification. Incorporating these other policies into a personal appearance policy also allows the company the discretion it needs, as no policy can articulate every item or type of clothing that might be prohibited. By clearly telling employees that they need to understand their appearance can, itself, violate the anti-harassment policy, for example, employees are on notice that they can be directed to not wear extremely short mini-skirts or mesh or compression t-shirts, for example. The policy also should reference the other company policies that can be implicated by inappropriate attire, including anti-harassment and workplace violence policies. In each of these cases, employers should identify specific types of clothing that are not permitted (e.g., “jeans are allowed but should be in good condition, without holes or fraying”). Many employers with casual dress polices still expect men to wear collared shirts and, in any event, employers are wise to advise employees to understand they are dressing for work, not a night club. Many employers allow employees to wear jeans few want them wearing jeans with holes or that are heavily frayed. If the company allows employees to work in casual attire, let employees know what the limits of “casual” are at this company (appropriate casual attire on an employer’s Silicon Valley campus is likely quite different than at an office in Washington, D.C.). If uniforms are required, it should say so. Then, the policy should clearly state what it requires. Next, a well-drafted personal appearance policy should let employees know why the company has adopted it. Given that employers typically seek to regulate aspects of grooming, such as facial hair, tattoos and body piercings, along with the clothing their employees wear, these policies should be titled “personal appearance” rather than “dress code” policies. The starting point for any policy is its name. The following guidelines can help employers avoid these common problems -and achieve the many benefits of a good personal appearance policy. From the obligations imposed by Title VII of the Civil Rights Act of 1964 (Title VII) to reasonably accommodate an employee’s religious beliefs, to those imposed by the National Labor Relations Act (NLRA) to allow employees to engage in protected concerted activity, employers need to understand that their otherwise broad discretion about regulating employees’ appearance in the workplace is tempered by a variety of employment-related laws. Even employers with well-drafted policies often get in trouble with these agencies because they did not train their managers and human resources personnel to correctly interpret and apply them in light of employment law. The lack of clear direction sometimes results in confusion for managers and employees -and problems for the employer when the policies are scrutinized by governmental agencies such as the Equal Employment Opportunity Commission (EEOC) or the National Labor Relations Board (NLRB). They can even prohibit visible tattoos and (most) body piercings.Īlthough many employers attempt to exercise these rights by adopting personal appearance policies, they often fail to provide sufficient guidance about what is appropriate under their policies. They can generally dictate that employees wear uniforms, clothes that convey a particular image about the company, or clothes that do not offend common sensibilities of good taste. Private-sector employers have great latitude in regulating employee appearance in the workplace.
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