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Ask the Hotline | Be Sure Dress Codes Apply to Everyone

June 19, 2018
 
Question
 
One of our customers complained that some of our male employees wear earrings while on their property. Can we adopt a company policy restricting men from wearing earrings on the job? 
 
Answer
 
No.
 
Any policy that adversely impacts one protected class over another is going to be illegal as discriminatory. To avoid such legal problems under the federal Civil Rights Act and Massachusetts anti-discrimination law, you could prohibit all employees from wearing earrings.
 
Banning earrings just for men would be treating the members of one sex differently than the members of another. While the anti-discrimination law recognizes a limited group of exceptions through its bona fide occupational qualification (BFOQ) exception, denying one sex the ability to wear earrings is not going to be viewed as one of them. 
 
Moreover, courts and other federal agencies have determined that discrimination against workers who express their sex in a non-conforming way (i.e. transgender employees who express a sexual identity different from their birth sex) is illegal sex discrimination.
 
The impact of these decisions is that company policies may not promote sex-stereotyping. Having separate dress codes for men and women is not going to fly. If an employer wants to have a policy that is different for men and women, it needs to be able to show that there is a legitimate, non-discriminatory reason for it. 
 
Numerous employers do maintain dress codes for their workplaces. Employers have a right to manage their company image and safety standards by specifying grooming and dress standards, but the restrictions must be gender-neutral.
 
Policies that easily apply to both sexes include banning revealing clothing, spandex, tattoos, unnatural hair coloring, mohawks, torn and dirty clothes, or clothing with slogans or offensive language.
 
Call the AIM Employer Hotline at 800-470-6277 if you have questions about this or any other HR-related matter. 
 
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