Episode 18: What Not to Wear – To Work

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel, and with me today is employment law expert Jennifer Shaw of the Shah Law Group. Welcome, Jennifer.

Thank you. I'm thrilled to be here again.

Of course, of course. We always enjoy having you as a guest. So it is hot outside today. It is hitting triple digits in Sacramento. It's the summer, so we are talking about dress code.

Great issue.

So much fun to talk about. I mean, beach wear, skin, flip flops.

Flip flops, exactly. Tube tops, if they're even still in existence. I haven't seen one of those in a while.

You know what? I wouldn't be surprised that anything resurrects, right? You can never know what's going on. So naturally, lots of questions that employers have, what do I do? Do I tell somebody, you've got too much skin showing? But of course, it's not just about clothing, right? There's so much more to talk about when we talk about dress code.

Well, what's interesting is dress code can include things like tattoos and piercings. It can also include hairstyles, personal grooming. There's a lot of different things. You know, how I trim my beard, whether I can have long sideburns, you know, and one of the things employers need to think about is what do we do in our business? Right? So you work in an office environment, you're gonna have different requirements than eye drop. Daughter off to horse camp this morning. And of course, everyone there is in their jeans and their cowboy boots and their cowboy hat. Well, it looked great for the horse camp, but it might not work for coming in the office.

Right, Very true.

So part of it is I think employers need to get out of their own way.

Okay.

Rather than judging. I wouldn't want my daughter to wear that or I don't think that's appropriate. Let's just talk about, what does this person need to be able to do? So one of my favorite stories in this area was I was a brand new lawyer. My new secretary came in with wearing the shortest skirt you could possibly imagine and a very revealing jacket. And I said to her, oh, gosh, I'm not sure if you should be wearing that, because I'm staring at her, okay. And she says, oh, I'm going out tonight. I didn't want to have to change. And it was clearly a going out outfit, right? And I was wondering what he's supposed to do. So I go to the office manager, and the office manager very correctly said, she's Going home. She can't wear this because literally she's supposed to be typing. The skirt graced the bottom of her derriere. Only by a little bit. It wasn't gonna happen. So part of it is not judging, but being able to step back and say, okay, what is this person supposed to do all day?

So kind of what we've talked about before is every workplace is gonna have different rules and standards.

Yes. And people don't like that.

And people don't like it because why can't I come to work ready to go to the nightclub? Because work is not a nightclub.

Well, and I'm sorry if your peer is staring at you whole host of other issues. It's a whole distraction, right?

Yes.

And you know, she looked very attractive in her suit and her jacket. Right. So part of me was like, okay, if I'm distracted by this, how are other people in the office gonna be? And the thing that we have to be careful of is we're not judging her for what she's wearing. Okay. I've had the same thing with. I had a guy I was working with a couple of years ago, came to work on a Friday. Cause it's casual Friday. Right. Wearing jeans that were falling to his knees. And so I had to pull them aside and say, okay, look, you know, the waistband on your undergarment is attractive, but not something I need to stare at all day. Pull the pants up, get a belt, do what you need to do. That's not what we do in this office.

But Jen, that was the style.

I know the style. Yeah, you sound like my 9 year old mom. This is the style. This is what I wanna wear. But here's the thing. Rather than judging, because I think what happens is this is a touchy area.

Yes.

People get uncomfortable, like, oh my gosh. So I had an HR person call me one time. She was whispering in the phone and I could barely hear her. I said, what's going. She said, I have a dress problem. Like, okay, what's going on? Turned out she had a young woman who was wearing white pants and a white shirt with no undergarments. So she says, what do I do? I said, well, you tell her to go home and get dressed. Like, you can't come to work dressed that way. And by the way, this is an architectural firm. So you know, we're not talking wearing a suit to court, but you can't sit there where people can see what's under your clothes.

Right.

We wear clothing for a reason.

Right. So let's take a Quick step back. So when we talk about different workplaces having different standards and we to talk about employee handbooks, because this is a great example of where a dress code policy can come in handy.

Yes.

However, we also want to be mindful that the dress code policies are contemporary. Correct. So in other words, we are not requiring women to wear pantyhose and skirts only.

And you're not going to measure the length of her skirt from her knee.

That's right.

So here's the thing that I always tell employers about these handbook provisions. They can help you or hang you. So anytime I review a handbook that has a four page dress code policy, I know we're in trouble. Right?

Right.

Well, your hair has to be styled this way and your makeup has to look this way. Now, if you're gonna be in a play or you are at that nightclub you mentioned earlier, we can have different rules, but honestly, the dress code should be dress appropriately for your position. And I always talk about the compensation bargain. We give you money for you to exercise good judgment. So that relates to what you wear, what you say, what time you arrive at work, how do you speak to your co workers? It's all wrapped up in that idea of work is a different place than home.

So keeping in mind, work is a different place than home. We also know, as we talked about, that dress code policies are not just about the clothing. Yes, people are uncomfortable to tell somebody, look, you're showing too much skin. But in the workplace, you absolutely can say, look, you got to cover up.

You can and you must. Because here's what happens if somebody's wearing that. Whether it's male or female makes no difference. They have a T shirt that has an obscene word on it. If you don't say something about that, you're creating a problem for your other employees. Now, people love to tell me in harassment prevention trainings, she's harassing me by wearing that risque outfit. So I couldn't help but make the comment, no, not buying that piece of garbage. Next, your comment. You own her dress or his dress, they own. So I think it's important to think about not only, like you said, what they're wearing, but also people's tattoos, the way they wear their hair. You know, you can't tell somebody, oh, well, I prefer your hair, you know, blown out straight. Well, that's just none of your business.

Exactly.

I'm gonna wear my hair in the natural way that it's worn if that's what I choose to do.

So in this fear of, okay, we are supposed to or encourage to keep folks on the dress code. You know, yes, you should change and get dressed. There are, however, some things that we have to be careful about as employers because there are some things that we can't say or can't require. So let's talk a little bit about some of the existing laws that protect discrimination and harassment as well for dress code policies. Right. And then also we can talk about some new developments that are pending out there.

That's a great idea. You know, one of the things that I think we need to remember is people may wear something that is very important to them culturally. So, for example, I had a supervisor one time who wanted to write someone up because she wore this long gown to work. She worked in an office environment, but it was an African gown from her tribe in Africa, so it was very important to her. So the boss was sort of like, well, that doesn't look like, you know, it's appropriate. But there was nothing inappropriate about it. So I think we have to really ponder when we want to give someone feedback, why am I giving them the feedback? Is there really a problem how I wear my hair? You know, just because I have hair that maybe because of my race or national origin is curly. Right. Or I want to wear it in a more traditional way, you don't get to tell me, no, that does not affect the way I do my job.

And I think this is really important because earlier in the podcast, you were talking about, I'm not judging. I am telling you what is appropriate. And that is, I think, the distinguishing line here of with that, the dress. That was a pure judgment. There wasn't anything inappropriate. And I think that's an excellent way for employers to really keep in mind, am I judging somebody? Because I don't think dressing a certain.

Way, they don't fit my mold.

They don't fit my mold, or it's not something I would wear versus, oh, my gosh, you need to go put some clothes on, or what you're wearing is just inappropriate.

Well, one of the things that I think is kind of interesting is to think back about historically, right? My grandmother was from the South. She never went out without gloves, a handbag, and a hat. And that is how it was. She would be mortified if she saw what many of us wear to work these days, only because it's not a suit with nylons and our hair perfectly coiffed and a hat and gloves and the whole thing. So as times change, we have to be flexible as employers with understanding that. But we don't have to let the person show up with jeans down to their knees or some inappropriate language on a T shirt. I mean, that's never gonna be something we're required to do.

What about religious protections? So I know in California we have religious and grooming protections in the law. Let's talk a little bit about that. Cause I can see that coming into play when we start talking about again, back to the hairstyle issue as well as we know, Abercrombie got into some trouble. Huge trouble. And then also with tattoos, Couldn't some tattoos be an expression of someone's religious.

Faith or their cultural belief or their background? For sure, yes. So here's the thing. The issue with Abercrombie is they didn't like the woman wearing the headscarf because they said it wasn't true to their brand.

Right.

So anytime we're talking about fitting in, it's not brand sensitive, it's not brand consistent. The hair on the back of my neck stands up. Because a lot of times those are buzzwords for. I just don't like what's going on. I'm not comfortable with it. I don't understand it. So certainly from a religious perspective, it could a headdress or headscarf, it could be a gown that somebody wants to wear. Now, look, if they're working in a manufacturing facility and they want to wear a Hare Krishna robe, that's a danger. Right, Right. So there's a reason that we have people wear form fitting clothes in a manufacturing environment, so that we don't have gaping pieces of fabric that can get caught in the material.

So those safety sensitive positions.

Exactly. And even if it's not safety sensitive for a drug testing issue. Right. Just working on a conveyor belt isn't gonna be safety sensitive for that reason. But it is based on what you're wearing right now. Tattoos are interesting. Yeah. So I recently read a statistic that like 46% of employees between the ages of 18 and 36 have tattoos. So almost half of them.

Wow.

And you have to think about what is the substance of the tattoo. Right.

Yes.

So we cannot just like under the constitutional analysis for First Amendment, we can't be content specific. We can't say, you could have a Star of David, but you can't have jes. What it's really about is what is the picture? What are we looking at?

Right.

So I had a situation recently where a gentleman came to work, he had a new tattoo. It was a naked woman on his forearm. And he felt it was a very beautiful Rendition or depiction of the female body. Great. But she's naked and you're coming to work. That's gonna start a discussion, and it's gonna be something that's not really appropriate. Now, the person can wear a long sleeve shirt, and it's easy.

Right.

A swastika has been considered hate speech by the United States Supreme Court. So we got to figure out what's in the middle.

Right.

The issues on the end are pretty easy to deal with. Right. It's the ones that are in the middle where we get the gray area.

Yeah, it's the gray area that gets really tricky. And I know that a lot of employers will just have blanket policies that require tattoos to be covered up or where that the employees need to wear sleeves to cover them. Like you said, wear a long sleeve shirt or wear the arm sleeves that you can purchase that will cover it. But how do you strike that balance? Particularly if that tattoo is an expression of my religious belief or an expression of my heritage or my culture?

Well, and here's something interesting. You know, if you wanted to have a rule that said you must have no tattoos, you could actually get away with that. The problem that you can't get away with is when you start letting some tattoos and not others, which is, of course, the practical way to go, then you're worrying about the substance issue. So the content, your rule has to be what we call content neutral.

Right.

And that's where we get into problems. We have to take a step back. And I think the best way to go is back to the handbook. If this were a picture on a wall, would we make somebody take it down? Would it be inappropriate under our harassment free workplace policy or our other equal employment opportunity policies? Does it incite violence? So is it something that we wouldn't let hang on a wall?

Right.

So to me, that's always kind of a good thing, is, okay, if you took my tattoo and put it on the wall, do we have a problem?

That's a nice way of analyzing and bringing some perspective to employers that are trying to figure this out without calling their lawyer or trying to figure it out.

Exactly.

Just right there when the employee walks in with a new tattoo.

Well, and what gets tricky is that you will inevitably get someone in the workplace who is offended by the sun coming up in the morning. Right. And I get it. Right. Some people have had experiences where they're really uncomfortable with some picture that the rest of us would be fine with. I think the most important thing is to listen to that person. Don't dismiss that person as being oversensitive or overreacting. Okay, maybe they have a different sensibility, but let's talk to them. What is it about this that is really concerning you? And then once you do that, you can start thinking about, okay, do I really have a problem? So the employee who comes in and says, listen, I don't want anyone wearing black in the workplace during the month of October. October. Because I think that they're worshiping wiccanism and that's about devil worship. You can tell I've had this case. Then you can back up and say, yeah, we really can't make all 2,000 people in this work environment not wear black. But hey, we hear you, and if there's anything else we can do, let us know. So dress code is so interesting to me because it overlaps. Kind of is an overlay. It's an overlap, exactly.

Yeah. It overlaps a number of issues. There isn't a one size fits all. There is something uncomfortable telling somebody, you kind of feel like you're playing mom in the workplace when you're the one delivering the message to the employee of seriously is that when you walked out of the house wearing. Right. You kind of go into that mama bear standpoint. But at the same time, it is important to address these issues and to have a candid conversation with the employee who you are addressing the issue with.

Well, and one of the things before we wrap up, I think it's so great when you can give someone some feedback. Someone may not know. They may not have thought about it. This is how they've always dressed. They now come in an office environment, let's say, and you have to help them understand. It doesn't mean they have to go buy a whole new wardrobe. That's ridiculous. But we can help them learn. Listen, really, it's about judgment. It's really about how you want to be perceived in the work environment. And let's talk about what makes sense. Let's have the dialogue.

So wrapping things up now that it's summertime, we can tell our employee, you cannot come to work with your bathing suit on in a cover up. That's for your home. Absolutely. Or.

Or your yoga pants or the spaghetti strap. Right, right.

Or your flip flops. You know, what they need to understand is how am I supposed to dress consistent with my work responsibilities.

There you go.

Now somebody will tell you, hey, I think just as well in my flip flops and my board shorts when I'm sitting at the computer as I would if I were wearing something more, quote professional. But then you have an environment issue.

Yes.

Right. Because here's what studies have shown that I think is fascinating. When we dress down, our behavior also comes down.

That is so true.

So casual dress Fridays were a disaster for workplaces for a while when they were trying to figure out how do I deal with my equal employment opportunity issues that might come up.

I think that that's fair to say. Definitely. I know that there's always been a big hubbub about jeans in the workplace. And of course, jeans have become much more acceptable. I mean, to your point about your grandmother, I remember when you had to dress up to go fly somewhere. And now everyone wears Je. Heck, some people.

Exactly. I just sat next to someone in her pajamas.

Yeah. With their Snuggie blanket. You know, I mean, why not? So, anyway. Well, as always, Jen, it is a pleasure. And there's always so much to talk about with all of these issues. So thanks again for joining us.

Thank you for having me. It's really a lot of fun for me, too.

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Sam.