People think all work bets are off when they are not on the clock or at their desks. Whether for good or bad; they are wrong. Anything that connects an employee to the employer creates potential for liability; therefore workplace bets are on! Employees who are misinformed on this topic may be inclined to engage in behavior that they would not otherwise, including choice of clothing for work-related events. So, yes, the Christmas party that takes place on employees’ off day should be treated the same as going to the office in terms of expectations and responsibilities for both the employer and employee. By maintaining consistent expectations, employers communicate that they are steadfast in their efforts to build and maintain a certain culture. Further, prudence in this area also communicates the employer’s commitment to protecting employees from harassment in all forms, especially gender and sexual harassment.
The recommendations below are based on three goals. First, the objective is to speak to how your organization should approach policies and implementation in general. Inconsistency will always get you into trouble. Second, the objective is to highlight how implementing a dress code policy could create harassment complaints. Third, readers will notice that there are no hard black and white rules provided; thus, the objective is to also stress that there will always be gray spaces and places for subjective judgment. There is no way to completely avoid all risk in human resources management. The goal is to minimize risk through well-constructed and fair policies and practices, not to eliminate it.
1: Know why you have a dress code policy in the first place. How does the dress code advance your organization’s ability to achieve its mission? Seriously, is your organization’s dress code only a throwback to the days of formal workplaces or does it serve a clear and current business or operational purpose?
2: Educate your staff about the policy and how appearance impacts the team and its mission. Inform them of how appearance impacts how clients perceive your team and the caliber of its work. Additionally, remind employees that you want them to have great interpersonal relationships and that primary reason for their relationships is their professional commitment to the organization: appropriate clothing helps everyone to remember their purpose and boundaries.
3: Apply the policy consistently. If you don’t follow it most of the year, enforcing it during the holiday party is not likely to go over well. If your organization has been inconsistent, your team needs to mount a strong communication campaign before the event to educate your employees at a minimum. Furthermore, a history of inconsistency will make defending the organization against discrimination complaints all the more difficult. Support your employee’s ability to follow the policy by having managers discuss expectations and distributing pictures of acceptable and unacceptable attire, i.e., posters, paycheck inserts, etc. Finally, make it clear that your organization reserves the right to require that employees change clothes or leave the party.
4: Be sure that your dress code doesn’t reflect bias. This is particularly tough for holiday parties. The first thing that came to my mind was a black tie party and spaghetti straps! For reasons like this, use policy language that speaks to both genders, i.e., employees must be covered from the collar bone to the knees. While federal courts have historically allowed different dress standards at work if policies are reasonable and don’t place a significantly higher burden on one gender, you want to evaluate this concern and other areas where claims of disparate treatment and disparate impact could arise. Additionally, blind enforcement has to yield to ADA and religion-based accommodation requests. Finally, it is prudent By the same token evaluate your policy to insure it is not enforced based on a supervisor or manager’s personal preference. In general, conscious and unconscious bias, legal and illegal, are huge concerns for dress codes. I recently worked with a client that was confronting challenges around “body type” and its dress code, i.e., how do you manage “sexy looking clothes” when the difference is about how weight and body shape affect how clothes look? Develop your policies along the lines of not chastising one characteristic over another.
5: When you have to use discretion in the moment, focus on what you are trying to encourage or discourage at the time and in the future. Then, frame your response in terms of, “I don’t care who is wearing it, this is our policy,” (ADA and religious accommodations notwithstanding). This approach should remind you that your in-the-moment decision is also creating a precedent. Moreover, if your response would be different based on gender or body shape, reframe your response to capture more of the overall principle and issue rather than just responding to how the person in front of you looks.
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