A Florida city revised its dress code last week to require that employees wear underwear to work. The dress code also prohibits provocative clothing, halter tops and piercings other than in the employees’ ears. I was asked to speak on the subject of dress codes about two weeks ago. The timing was just a bit too late, and I missed this great illustration.
The story gets even better. The mayor of Brooksville cast the only opposing vote to implementing the new dress code, citing that a mandate to wear underwear “takes away freedom of choice.” This gives a new meaning to the term “pro-choice."
So is the city’s “pro-underwear” position legal?
Probably. Employers can generally set dress code standards for their employees as long as the policies do not discriminate on the basis of gender, race, religion, disability, or any other protected status.
If the dress code conflicts with an employee’s religion, an employer may have to analyze whether there is a reasonable accommodation that it can provide to the employee. In the context of providing an employee a reasonable accommodation for dress issues, the US Supreme Court noted that in the context of religion accommodations, employers do not have to provide accommodations that are more than a “de minimis” cost. See TWA v. Hardison 432 U.S. 63 (1977).
Employers also have to be aware of obscure state and local laws that may also prohibit employers from implementing other prohibitions. For example, here in California, the Government Code specifically addresses employees’ right to wear pants to work. Section 12947.5 states:
(a) It shall be an unlawful employment practice for an employer to refuse to permit an employee to wear pants on account of the sex of the employee.
(b) Nothing in this section shall prohibit an employer from requiring employees in a particular occupation to wear a uniform.
While there are some laughs at the Florida city’s expense, employers do need to pay close attention to their dress code policies to ensure that they are compliant. Employers also need to ensure that HR is properly trained to deal with complaints and requests for reasonable accommodations when they arise.