Employers frequently use dress code and grooming policies to set workplace appearance standards. Federal law generally allows employers to regulate employee appearance but does not shield them from related litigation. Employment attorneys should be familiar with the key legal considerations when drafting these policies.

Appearance guidelines can trigger employment discrimination complaints. Plaintiffs allege discrimination by tying characteristics such as hair styles, body piercings, tattoos, jewelry and clothing to protected classes. For example, in EEOC v. Abercrombie & Fitch Stores, Inc., the plaintiff alleged she was not hired because she wore a head scarf, known as a hijab, and that the company failed to accommodate her religious dress by making an exception to its "Look Policy" (No. 11–5110, (10th Cir. Oct. 1, 2013) and see Legal Update, Tenth Circuit Commands Explicit Notice for Religious Accommodation Claims). Similarly, in Cloutier v. Costco Wholesale Corp., the plaintiff claimed Costco failed to accommodate her religious practice as a member of the "Church of Body Modification" when it did not excuse her from the "no facial jewelry" provision of its dress code policy (390 F.3d 126, 128 (1st Cir. 2004)). Dress code claims are not limited to religious discrimination. For example, in Kintz v. United Parcel Service, Inc., the plaintiff alleged both sex and disability discrimination when the employer allegedly required her to wear long pants to cover a leg brace, but did not enforce the same dress code requirement against male employees with leg braces (766 F. Supp. 2d 1245, 1252 (M.D. Ala. 2011)).

Because appearance guidelines can lead to discrimination claims, attorneys should understand employer obligations under federal and state law before drafting these guidelines. Practical Law has published a variety of resources to help attorneys understand workplace discrimination, including:

In addition to complying with anti-discrimination laws, both unionized and nonunionized employers must ensure that they comply with the National Labor Relations Act (NLRA) when developing and implementing policies, including dress codes and grooming policies. For information about compliance with the NLRA, see Practice Note, Employee Handbooks: Best Practices: Compliance with the National Labor Relations Act.

Dress codes that interfere with employees' protected rights to wear union insignia, such as buttons, at work may trigger unfair labor practices (ULP), unless the employer proves special circumstances exist, such as:

(Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) and Sam's Club, 349 N.L.R.B. 1007, 1010-12 (2007).)

Federal courts tend to interpret special circumstances more broadly than the National Labor Relations Board (NLRB) (see, for example, Legal Updates, Employer Did Not Violate NLRA by Prohibiting Clothing with Insulting Message: DC Circuit and Starbucks Can Prohibit Multiple Pro-Union Buttons: Second Circuit). However, employers should anticipate the NLRB will target dress codes as overbroad or discriminatorily enforced in ULP prosecutions (see, for example, Legal Update, Narrow Bans on Union Insignia in Patient Care Areas, Unlike Broad Bans, Not Presumptively Lawful: NLRB).

For more information about an employer's collective bargaining obligations, see Practice Note, Collective Bargaining under the National Labor Relations Act.

Finally, workplace health and safety considerations can also impact dress code and grooming policies. For example, the nature of the work may require that employees wear hair ties, long pants or protective shoes. For example, in EEOC v. Oak-Rite Manufacturing Corp., a job applicant required by her religion to wear skirts challenged the factory's pants-only rule as discriminatory on the basis of religion. The court rejected her claim, concluding that the facially neutral policy was a "reasonable safety measure" and that the employer was not required by Title VII to "experiment with employee safety" (IP 99-1962-C H/G, , *1 (S.D. Ind. Aug. 27, 2001)). For more information about workplace health and safety, see Practice Note, Health and Safety in the Workplace: Overview.

Practical Law has published several downloadable, customizable employment policies, including a dress code and grooming policy. Standard Document, Dress Code and Grooming Policy includes explanations and drafting notes so attorneys can tailor it to a particular business environment and organizational culture. Other employment policy drafting resources include: