Cooling Off . . . Revisiting Employee Dress Codes in the Summertime

18 July 2022 Labor & Employment Law Perspectives Blog
Author(s): Kevin E. Hyde

It’s Summer 2022 – and life is back to normal?  Or is it?

While inflation remains high, the labor market remains tight.  The Department of Labor’s most recent job report shows that 372,000 jobs were added in June, and the unemployment rate remained at 3.6% for the fourth month.

With workers in short supply, what is an employer to do to attract talent?

A recent article by Sharon Lauby in HR Bartender suggested eight employee benefits worth considering to attract and retain talent.  One of those suggested benefits that carries little financial cost to the employer is the so-called “Summer Friday,” which could include anything from skipping Friday work altogether to a relaxed dress code.  While few employers may go so far as to cancel work on Fridays, many employers have instituted dress codes that are even more relaxed than a typical Casual Friday.

Here are two practical considerations when implementing or modifying dress codes:

First, the EEOC has weighed in on dress codes, warning employers to be mindful of disability and religious considerations, as follows:  The EEOC states:

In general, an employer may establish a dress code which applies to all employees or employees within certain job categories.  However, there are a few possible exceptions.

While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers' ethnic beliefs or practices, a dress code must not treat some employees less favorably because of their national origin…

Moreover, if the dress code conflicts with an employee's religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship. 

Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship.

Second, the key is to clearly set expectations on permissible attire, especially in a more relaxed dress environment.  Notice again that the EEOC says “an employer may establish a dress code…”  Subject to the limitations above, it’s the employer’s right to set its dress code policy.  The key is being clear and precise.  Consider the example below of a professional services organization that allowed its employees to beat the summer heat by wearing shorts to work:

It has gotten unbelievably hot this summer.  If you do not have a client coming in, feel free to wear some nice, ironed shorts with a short sleeve collared shirt to the office for the month of July (we will see how it goes before extending into August).  No ripped shorts, no jean shorts, no running shorts, and no t-shirts.  If someone is going to have a client in the office on a given day and don’t feel they would like to see shorts, give me advance notice and we will announce it and go back to normal wear for the day.  Have a great 4th of July.

Finally, employers should aim to make dress codes as broadly applicable as possible.  For example, a dress code that only permits men to wear shorts during warm summer months may raise gender discrimination concerns under Title VII and similar state laws.  The above example provides a good illustration of a broadly-applicable gender-neutral dress code policy.

There are many ways to attract and retain talent.  Allowing a relaxed summer dress code may be a way to start.  But like everything in life, there are occasions when “no good deed goes unpunished.”  Beware of pitfalls arising from failure to clearly outline the dress code, from inconsistently applying it, and failing to recognize accommodations

Here’s to remaining cool during the rest of the summer!

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