When Casual Gets Too Casual
A few years ago, many companies adopted “Casual Fridays” as a means of boosting morale among workers. These days, many of those same companies have adopted a “Casual Everyday” dress culture. But that doesn’t mean anything goes. Whether it’s an employee who’s dressed more for the club than the office or an employee with visible racist body art, there are instances when company owners must put their foot down. The key to dealing with such challenges without risking adverse legal action is to adopt a nondiscriminatory, consistent standard, and stick to it.
At some point, nearly every worker must deal with a co-worker who practices less than satisfactory hygiene, or who dresses more for the beach or lounging on the couch than for work. In many cases, the “solution” is to have a bar of soap mysteriously appear on the offending person’s desk. By that time, it’s far past time that the employer should have stepped in, according to Amanda Wingfield Goldman, an associate attorney specializing in labor an employment law with the New Orleans office of Coats Rose, PC.
“It is important for an employer’s HR department to address personal hygiene issues before another employee does so in an untactful way, which can cause a situation to spiral out of control into a workplace bullying issue,” she explained.
Instead, the employee’s supervisor or someone from human resources should have a private consultation with him or her, explaining that he or she has become a distraction, Goldman stated.
Alexa Miller, an associate attorney at the Murray Hill, New Jersey office of Fisher and Phillips, LLP, agreed. Miller added that the employee should be allowed to explain any circumstances that might be responsible for the situation, and that such circumstances might require an accommodation under the Americans with Disabilities act.
“For example, body odor or bad breath may not be the result of poor hygiene, but rather, a medical condition or a side effect to medication,” Miller explained
Body Art and Piercings
Miller pointed out that some workplace dress codes include regulations limiting the size and number of visible tattoos. On the other hand, Goldman warned that limiting piercings could cause legal problems for employers unless they could establish that such piercings posed a hazard, such as getting caught in a machine. Both Miller and Goldman also pointed out that certain cultural or religious traditions may form the basis for certain piercings or body art. In such cases, employers should tread carefully.
“If an employee raises a religious objection to the rule (against piercings or body art), management may have a duty to accommodate and should consult counsel,” Miller stated.
Miller and Goldman both emphasized that racially offensive or sexually explicit tattoos that are visible need not be tolerated. They also advised that the key to dealing with body art and piercings is to adopt a nondiscriminatory policy and apply it evenly.
Regulating how employees wear their hair represents a potential legal minefield of discrimination complaints. Dealing with hairstyle issues requires the same evenhanded treatment as dealing with body art and piercings, according to Miller.
“Some employers have policies that prohibit extreme hairstyles, such as hairstyles that are unnatural in color, too long, or sculpted or shaved into a design. The key here is that such policies must be applied consistently and in a non-discriminatory manner. In other words, if the policy prohibits dreadlocks and corn-rows then it should also prohibit purple colored hair and Mohawks,” she explained.
Goldman stressed that policies governing hairstyles and facial hair should be “neutral” and applied “evenhandedly,” according to EEOC guidelines.
“For example, if an employer’s policy requires men to be clean-shaven, an employer may need to make exceptions for African-American men who suffer from inflammation from shaving. Policies may require neatly groomed hair, but employers must be wary of creating policies that do not respect racial differences in hair texture, for example, by telling African-American women that they cannot wear their hair in a natural Afro style,” she stated.
Dress Codes and Personal Expression
Miller pointed out that dress code issues have evolved far beyond whether a woman’s skirt is too short or a man is wearing too much jewelry. These days, employers’ dress codes must deal with state laws (such as those in New Jersey) that prohibit discrimination according to gender identification. Other issues that must be considered include sincerely held religious beliefs.
“Employers with a dress code or appearance policies must allow employees with a sincerely held religious belief to incorporate religious practices into dress and appearance, provided that doing so does not create an undue hardship on the employer. Examples might include permitting a Sikh to wear a beard, allowing a Muslim woman to wear a hijab, or allowing an Orthodox Jewish man wearing a yarmulke,” Miller stated.
Posted In: Management
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