Time to check the dress code? Can an employee be "too hot?"

Time to check the dress code? Can an employee be "too hot?"

According to news reports, a 28 year old female employee was fired from a Manhattan based lingerie wholesaler because she wore inappropriate clothing to work.  At a press conference with her attorney Gloria Allred, the woman said that she was told by a female supervisor to tape down her breasts and was given a full length bathrobe to wear.  She was also told that the Orthodox Jewish owners disapproved of what she was wearing.  The woman has field a charge with the EEOC alleging sex and religious discrimination.

The EEOC addresses the issue of dress codes on its web site in a  "prohibited practices" section.  The section states that an employer may establish a dress code to apply to all of its employees.  It also discusses exceptions which may arise based on an employee's national origin and requests for accommodation based either on disability or religious beliefs.  The Small Business Administration also has a discussion of dress codes on  its web site.  The SBA states that policies should avoid singling out a particular group.  It gives the examples that requiring men to wear ties but not women is permissible  while allowing men to wear jeans but not women would not be permissible.

The charge raises the issue of appropriate appearance.  If the standard is that an employee cannot be "too hot," presumably men cannot wear wear tight t-shirts or pants.  As to enforcing this obviously subjective standard, an employer may borrow from Justice Stewart's observation with respect to obscenity that you know it when you see it.

An employer has a right to implement a dress code policy, provided it does not discriminate.  Specific examples of what is considered appropriate and inappropriate should be given to employees , and employees should be encouraged to bring questions concerning the propriety of clothing to their supervisors or to HR.  It is also advisable to remind supervisors that when that they are enforcing the policy, the term "inappropriate" is better than "too hot."

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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