Can an Employer Enforce a Dress Code?

Q.     Yesterday, Speaker of the House John Boehner chastised his fellow House members for not wearing suits and ties and respecting proper decorum while in the Capitol.[1] Earlier this week, the Oscar awards spawned a number of stories that criticized Oscar attendees’ attire (or lack thereof).  As a business owner, I am also concerned about my employees’ attire.  Like John Boehner, I am old school and think that attire should be professional.  Unfortunately, many of my employees, particularity female employees, show as much skin as some of those actresses at the Oscars.  Both my male and female employees also like to show off their latest tattoos.

On one hand, I am afraid of not doing anything because I may lose my fellow old school clients.  I am also concerned about the increased risk of sexual harassment lawsuits when an employee makes an inappropriate comment about another employee’s inappropriate attire (irony).  On the other hand, I am concerned about promulgating a dress policy which might otherwise infringe on my employees’ rights.  Help!

A.     You know times are changing when Congress has to be told to suit up and celebrities show up to the Oscars with the same amount of clothing as the golden statue, itself.  If Congress and attendees at the most conservative entertainment awards ceremony can’t pull it together, how can a small Valley employer!  Fortunately, there are some guiding principles for an employer’s dress policies. As a threshold matter, an employer may have a strict dress code.   Notwithstanding, a dress code must not discriminate based on any protected class.  For the purpose of a dress code, religion, gender, gender identity, sexual orientation and gender expression may all come into play and need to be considered.  Any dress code will need to be applied consistently across all of those aforementioned groups.  While an employer may be able to provide different standards to males and females, such gender-based distinctions are becoming increasingly murky ever since gender identity and gender expression became protected classes.  Additionally, California recently passed the California Workplace Religious Freedom Act, which requires that an employer provide reasonable accommodations for an employee’s religious dress or grooming practices.  This new law may not only impact dress and hair styles, but also religious tattoos.

Unfortunately for employees, the simplest solution for employers is to simply apply a strict dress code that is applied consistently – long-sleeve collared shirts for everybody!  Or, if up to John Boehner, perhaps a green tie.[2] Or, if up to the Academy, a Birdman outfit?[3]

[1] http://www.cbsnews.com/news/john-boehner-scolds-house-members-on-dress-code-you-know-who-you-are/

[2] http://www.theatlantic.com/politics/archive/2011/07/john-boehner-loves-him-some-green-ties/242557/

[3] http://www.hitfix.com/in-contention/the-inside-story-on-birdmans-instantly-iconic-superhero-costume

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

What are the Rules Regarding Employees that have Suspected Substance Abuse Problems?

Q.     Much has been made over the decision by Cleveland Browns quarterback and former Heisman Trophy winner, Johnny Manziel, to enter rehab.  The Browns have noted they fully support Manziel’s decision.  There have also been recent reports that the same team has suspended standout wide receiver, Josh Gordon, for violation of their substance abuse policy.  This seems like a double standard.  I know my employees don’t play football, but what are the rules regarding employees that have suspected substance abuse problems?

A.     This is a difficult question that requires specific concern.  And, although there is sometimes humor in these e-mails, alcoholism and drug dependency are not laughing matters and have profound family and community impacts, as well as significant legal ramifications.  In California, the Labor Code requires private employers that regularly employ 25 or more employees to reasonably accommodate an employee who wishes to participate in an alcohol or drug rehabilitation program.  Likewise, an employer must make reasonable efforts to ensure the employee’s privacy.  Finally, the Labor Code has a mechanism for an employee to file a complaint if the employer has refused to reasonably accommodate an employee who wishes to attend an alcohol or drug rehabilitation program.  Outside of these specific California Labor Code provisions regarding rehabilitation programs, alcoholism and drug dependency may also qualify as a disability which an employer may be required to accommodate (generally through leave) or provide statutory leave to address.

At the same time, while alcoholic employees may be provided some protections, employers can still terminate employees who abuse alcohol at work, or cannot perform because of a “hangover” or other after effects.  Ultimately, employees are still required to perform the essential functions of their job.  And, while an employer may be limited in its ability to require employees to be randomly drug or alcohol tested, the law generally permits testing based upon reasonable suspicion of use.

Finally, where an employee has abused alcohol at work, some employers have used “last chance” agreements.  While there is little case authority regarding the legality of last chance agreements, they are viewed favorably by employer groups as a means of documenting an issue and providing an employee a final opportunity to improve before termination.