Dress Code Considerations and Best Practices

Moreover, thoughtfully crafting a dress code policy can set employee expectations, increase productivity, and even prevent claims of unlawful harassment, discrimination, and retaliation. This article provides a few of the important considerations for drafting and/or revising your hotel’s dress code policy.

Hotels have a unique interest in ensuring that their guests are welcomed by a clean and professional workforce. Dress codes can be a valuable tool to help hotels make a positive first impression and set the tone for a pleasant guest experience. Moreover, thoughtfully crafting a dress code can set employee expectations and increase productivity. Finally, a legally compliant dress code can help hotels avoid claims of discrimination and disparate treatment.

Clearly Communicate Expectations

A good place to start when drafting a dress code policy for your hotel is with encouraging your employees to exercise professional judgement when it comes to appropriate attire. However, keep in mind that employee judgment and experience can vary significantly. For example, what is considered appropriate attire for your front desk agents (to present professionally for your guests) may differ from what is considered appropriate attire for your maintenance technicians (to be able to work with necessary tools safely and effectively).

As such, in addition to encouraging the exercise of professional judgment, it is important to set clear expectations for employees. A well-drafted dress code policy will outline all aspects of employee dress and appearance. Employers can generally adopt and enforce dress code policies to help create and maintain their desired image. You should consider your hotel’s branding, image, values and mission. Also, keep in mind the kind of work environment you hope to achieve, and practices within the hotel industry.

While hotel industry dress codes can vary, a common theme for a well-drafted dress code policy is that it includes language requiring employees to present a professional, neat, and well-groomed appearance. Employers should also consider defining what “professional,” “neat,” and “well-groomed” means for your hotel. Except in certain situations, some of which are discussed further below, employers can generally set and enforce guidelines on clothing, shoes, jewelry, tattoos, etc. For example, what sort of clothing is permitted for various positions? Should it differ for customer-facing roles? Do shoes need to be closed-toed? Is there a specific uniform required? Are there acceptable variations of the uniform? Are jewelry or piercings permitted? How about perfumes? For tattoos, are there placement and/or content concerns? And so on and so forth.

Keep in mind that employers can set different standards for different jobs. Once the employer has outlined their expectations clearly, the dress code policy should explain the consequences for an employee reporting to work in violation of the policy. For example, whether the employee be sent home to change, and whether they be paid for the time it takes to do so.

Keep it Neutral

When crafting your dress code policy, consider whether it applies equally to all of the hotel’s employees. Some traditional dress-code prohibitions (i.e. the length of a woman’s skirt or a man’s hair, etc.) are quickly becoming outdated or even illegal. For example, in 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation or gender identity. So, when drafting a dress code policy, make sure the burden on each gender is equal.

Another example would be a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire. If the dress code otherwise permits casual dress, it could be interpreted as treating some employees less favorably because of their national origin. Having a neutral policy puts employers in a better position to defend against accusations of discrimination against Title VII protected groups. If you are unsure whether your policy will be interpreted as neutral or not, run the language by your labor and employment counsel.

Watch for Potential Pitfalls and Accommodate Where Required

While employers can generally require employees follow a uniform dress code, there are situations where employers are legally required to make exceptions. Specifically, employers should not enforce the policy in violation of any equal employment opportunity laws. Employers also need to provide reasonable accommodations to the policy for an employee’s religious beliefs and practices, medical needs, or other protected reasons. When it comes to an employee’s religious beliefs and practices, Title VII requires that once an employer is on notice that an employee needs a religious accommodation for sincerely held religious beliefs or practices, employers must make an exception to its dress code requirements unless it would pose an undue hardship.

For example, if your dress code policy prohibits hats, you may have to make an exception if an employee wears a head scarf as part of their religious practices. EEOC guidance provides that: (1) Requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs, (2) An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship, (3) When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons, (4) Neither co-worker disgruntlement nor customer preference constitutes undue hardship, and (5) It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly.

Importantly, in 2023 the U.S. Supreme Court held that undue hardship is shown when a burden is substantial in the overall context of an employer’s business, tak[ing] into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer. The U.S. Supreme Court further clarified that showing ‘more than a de minimis cost’…does not suffice to establish undue hardship under Title VII.

Once the company is on notice that an employee requires a reasonable accommodation regarding the dress code policy, the company should engage in the interactive process with that employee to identify possible accommodations. For more information regarding the interactive process, consult your labor and employment counsel.

Account for State and Local Requirements

Employers should also keep an eye on state and local requirements that may be more stringent than federal law. For example, in California, “The CROWN Act,” with the stated purpose to enforce the “values of fairness, equity, and opportunity for all," went into effect on January 1, 2020.

The CROWN Act prohibits discrimination based on natural hairstyles in the workplace and in public schools. It amends the definition of "race" in the California Fair Employment and Housing Act and the California Education Code to include traits historically associated with race, such as hair texture and protective hairstyles.

Enforce the Policy Consistently

When it comes to enforcing your dress code policy, it is best to stay consistent. Failing to do so runs an increased risk of a discrimination lawsuit. Employers should avoid the appearance of disparate treatment – having a written policy outlining clear expectations goes a long way in assisting consistent enforcement.

Conclusion

Thoughtfully crafting a dress code policy can outline reasonable workplace expectations, increase productivity, emphasize health and safety standards, and even prevent claims of unlawful harassment, discrimination, and retaliation. When drafting and/or revising your dress code policy, keep the above considerations in mind. Accommodation requests involving the policy should be reviewed on a case-by- case basis, taking into account all available information. Finally, consistent enforcement is key and will help keep you and your hotel out of the courtroom.

This article provides an overview of the law and is not intended to be, nor should it be construed as legal advice for any particular fact situation.

Reprinted from the Hotel Business Review with permission from http://www.hotelexecutive.com/.