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Tips from a Lawyer: Employee Attire

Contrary to popular belief, employees have no “right” to dress as they please at work.

For the most part, the foodservice industry has historically been more relaxed when it comes to personal attire, piercings and tattoos (hello, show me a chef who doesn’t have a tattoo). But back of house staff and those in the front of house who are customer facing might be subjected to different policies concerning dress and appearance. Whether dealing with food preparation, or taking orders from customers, employers may set forth specific guidelines to meet food safety requirements and overall brand vision and mission goals.

And that’s where you can open up a whole can of worms when it comes to civil rights protections. Discrimination is always a hot topic here in the states, and poorly written and implemented policies (or no policy at all) could really cost you a lot should anyone ever decide to take you to court.

Confused about the gray area concerning employee appearance and attire? Don’t worry, you’re not alone. Todd Fredrickson of Fisher & Phillips LLP recently tackled these issues during his session, “Breaking Bad Behavior: Employee Behavior Do’s and Don’ts,” at the Colorado Restaurant Show. Here are some of his tips for protecting yourself should you ever get taken to court.

First Things First, Have a Written Policy

Written company policies are always the first step to your defense should you face any discrimination lawsuits. Policies are an effective way to thoroughly outline company standards and requirements, and if you require (you should) every employee to sign off on receiving a copy of the policy it can offer you additional protection.

When drafting your policy, Fredrickson suggest that you consider the following:

1. Clearly Communicate Your Branding, Image, Values and Mission

Before you establish appearance or uniform guidelines, it helps to have a policy that articulates your specific brand, image, values and mission. Fredrickson emphasizes that you can be as specific or general as your business “culture” permits, but take care not to inadvertently draft policies that could discriminate a class protected in Title VII. For example, some fine dining restaurants may forbid visible tattoos and require employees to cover them up either with clothing or makeup in order to maintain a certain image. However, that “image” may fall short in protecting you should you choose to discriminate against an individual based upon religious considerations, like a headscarf.

2. The Burden on Each Gender Should be Equal

When creating your uniform and/or appearance policies, make sure the burden on each gender is equal. Keeping policies gender-neutral stand up better if you find yourself accused of discrimination against a protected group identified in Title VII. For example, Fredrickson suggests that while prohibiting “revealing” or “provocative” dress at work is acceptable, do not provide gender-specific descriptions (eg, skirts that are deemed “too short”).

Differences related to items like nail polish or jewelry are acceptable, but they need to be appropriately justified. For example, those working in the kitchen may be required to refrain from nail polish because product could chip off into the food and create a safety hazard for customers.

3. Safety Could Trump Religious Protections

Title VII protects any kind of religious discrimination and harassment in this country. So while you may dictate a uniform or dress code at your establishment, you are still required by law to make appropriate accommodations for employees. That means that long beards or a Sikh Dastaar (a type of headgear important to Sikh culture) are protected by Title VII. Translation? If someone takes you to court over a policy that does not make suitable religious accommodations, you’ll probably lose.

But working within a commercial kitchen can be dangerous, particularly while operating heavy machinery like slicers, floor mixers, ranges and more. Potential conflicts could arise while accommodating employees’ religious beliefs surrounding safety; loose clothing like certain headscarves could be caught in equipment and pose a serious safety risk to the employee themselves. In these instances, communicate with your employee directly if you foresee potential conflicts and ask them if they are able to fulfill the requirements of the job. Always be sure to include all job requirements in listings and to go over them in full during the interview before hiring employees to ensure that individuals are aware of what the position entails.

4. Basic Grooming Standards May Be Enforced

That last thing you want a customer to find in their food is a stray hair. That’s why it’s commonplace for employees to wear hair and beard nets to prevent cross-contamination. In most cases you can also require neatly-trimmed beards, but take caution with your language and enforcement.

But what about body odor?

Understandably so, discussions about person hygiene rarely go well. But if you’re working directly with food that is served to customers it could become a serious safety issue for your business. A tactful approach to body odor is to focus on the way it impacts work accomplishments. For example, if other employees cannot work with or collaborate with this employee due to odor issues, that employee may want to reconsider his or her hygiene. And if it becomes a persistent problem, refer to your company policies.

5, Implement a Dress Code the Right Way

When it comes to enforcing a dress code, don’t leave it to supervisory discretion. Doing so could increase your risk for a discrimination lawsuit since each supervisor may have a different opinion on what is acceptable or not. Should you or another manager believe an employee is in violation of your guidelines, always rely on your prescribed policy which should have already been communicated to employees.

When you talk to employees directly about non-compliance, do it with some sensitivity. Offer the offender a chance to correct violations rather than face disciplinary action immediately. If the behavior consistently becomes a problem, then pursue next steps.

Typically, offering specific examples and solutions might help provide more guidance than merely referring to “inappropriate” dress in vague terms.

Take care to spend time writing your policy. It wouldn’t hurt to have a lawyer review your policy before publishing to check for incriminating language or loopholes you missed.

About Natalie Fauble

Natalie Fauble is the Online Marketing Manager - Content & SEO for Tundra Restaurant Supply. As a digital marketer with a passion for the restaurant industry, Natalie helps companies shape their brand through thoughtful, fun and innovative content strategies. When she isn't blogging for Tundra Restaurant Supply you can find her in her vegetable garden or in the kitchen whipping up one of her favorite dishes.

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