Delaware Employment Law Blog

Work rules for dress code are not out of fashion just because the season has changed.  Instead, the topic of "What Not to Wear to Work" is as trendy as ever.  So, for those of you charged with the task of enforcing dress codes and monitoring hem lines, here's a bit of reassurance that you are not alone.   

Four security guards at NYC's Grand Central Station were disciplined when their "sloppy-looking" dreadlocks did not fit under the uniform-standard caps.  Three of the four were suspended for their refusal to comply with their employer's demand that they come to work "with their hair properly cut."  The fourth shaved his beard after being told that failure to do so would result in his termination. 

The EEOC filed suit on behalf of the public safety officers against the Grand Central Partnership alleging religious discrimination--the employees are Rastafarians.  The matter appears to have been resolved, though.  The partnership recently agreed to provide custom-made hats to each of the officers so they could tuck in their dreadlocks.

We’ve talked a lot about dress codes this summer. It’s a topic that just doesn’t go away. Beats me whether the sustained interest in the dress-code issue is due to the super-casual approach of the Gen Y employees populating the workplace at a rapid pace, or to the connection between rising temperatures and rising skirt hems, or maybe to our hyper-sensitivity to attire that the legal profession just can’t seem to let go. The obsession could be a result of any combination of these factors.

And the obsession has made for interesting blogging. We’ve talked about Gen Y’s insistence on meeting the arbitrary standards of fashion as they see it, as opposed to the standard of their particular workplaces. We’ve talked about the current status of the lawyer’s dress-code pendulum. We’ve addressed the role of gender when it comes to setting dress-code policies. And we’ve even managed to tackle some specifics of what not to wear to work—including the invasion of the man-short, a personal favorite.

As hard as this might be to believe—I’ve actually happened upon an even more interesting real-life story about dress codes! And it even involves a lawyer, which definitely gets me bonus points in the “tie-it-all-together” category. Judge for yourself. (Via the Legal Profession Blog).

The Arizona attorney at the center of the story was charged by the State’s Bar Counsel with unethical conduct. The lawyer had to answer to a disciplinary committee and defend the misconduct charges filed by the Bar Counsel. The atrocious conduct at issue? The disciplinary charge alleged that the attorney had employed tactics that had no substantial purpose other than delay and embarrassment. He was also alleged to have failed to abstain from “all offensive personality.”

And here’s the conduct that led to these charges. The lawyer, who was admitted to the Arizona State bar in 1999, and who practices criminal defense, went to a police station to informally interview two police officers involved in a vehicular-manslaughter case. When he arrived at the station, he was wearing a t-shirt that had “Let the f***ing” printed across the front. [Asterisks not included].  He wore the t-shirt to communicate his opinion that his client was at a disadvantage in the judicial system by virtue of the police conduct.” Neither officer commented on the attorney’s fashion choice.

A prosecutor was also present during the visit. She testified that she was not offended or embarrassed by the shirt. She believed that he’d donned the shirt in an attempt to be funny; although she did think that it was a bit inappropriate. Her supervisor, on the other hand, did not find humor in the shirt or with the attorney wearing it. He ordered security officers to take pictures of the shirt.

And, perhaps to ensure that he wouldn’t be invited to the Maricopa County P.D.’s holiday party, he told another prosecutor that her boss was an “unethical piece of trash.” He made the comment in response to a request for a transcript. He provided the requesting prosecutor the transcript without delay or inconvenience.

Then, in an exercise of the holiday, gift-giving spirit, the attorney later sent a note to the Chief Attorney in the Vehicular Crimes Bureau, enclosing a small gift. The note read, “Kristen, your waiting room magazines required a better selection.” Enclosed was a six-month gift subscription to Modern Drunkard Magazine. The Chief received monthly issues of the magazine as promised but did not put them in the waiting room. She felt it may be inappropriate, given she was the head of the office that prosecuted drunk-driving cases. She did appreciate the humor, though, and was not embarrassed or otherwise imposed upon as a result of the “gift.”

If you are confused as to how these three incidents could rise to the level of sanctionable conduct, you are in good company. The hearing officer recommended that the charges be dismissed in their entirety—the first time in his 25-year tenure that he had made such a recommendation. Maybe the conduct was inappropriate or in poor taste. But maybe not—given the evidence that the intended recipients of his less-than-subtle messages were not offended or embarrassed. Either way, the hearing officer wrote, “on the continuum of inappropriate to unprofessional to unethical,” the attorney’s conduct could be described, at the worst, as inappropriate.

For all of the dress-code talk lately, I'd guess there's no dress code quite like the one in Beijing.  In preparing for the Olympics, Beijingers have been instructed to put on their Sunday best.  And for those HR Specialists who thought that specificity in dress codes is just plain impossible, there are some Beijing government officials who would disagree.

Here are some of the examples of the attire-centric advice contained in the 4 million booklets that have been distributed:

1. Do not wear too many colors (generally not more than three);

2. Avoid white socks with black shoes;

3. Pajamas and slippers should not be worn in public.

[Source: AP at MSNBC,  Beijingers Get Dress Code Advice for the Olympics]

There has been no mention, though, of a prohibition against those man-shorts that John Phillips and I have both discussed.  What can we say?  Fashion is tricky--for employers and for government of the largest country in Asia.

Prior Dress-Code Posts:

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

What Not to Wear to Work: More Style Rules for the Modern Worker

Coworkers beware.  Your male colleagues may be showing a bit more skin this summer.  According to the New York Times, it's just a matter of time before your male colleagues start showing up to work in a suit jacket, shirt and tie, and . . . shorts.  Yes, that's correct.  Shorts.  

Interestingly enough, the paper said the same thing this time last year about the line of suits that had been produced for women and that featured knee-length shorts.  I recall there being an actual debate about whether the author of the article lived on the same planet as the rest of us.  There was also a mild interest in the idea based on the heat factor.  Indeed, there was a little flurry of excitement over what seemed to be a new line in the sand when it came to business attire. 

In our office of roughly 200 people, one woman was nervy enough to give it a try.  And she looked great.  She's also a size 0 and stands 5' 10".  She looks great in a parka with mittens and snow boots.  It's virtually impossible for her to not look great. 

So, pardon me NYT, I mean no disrespect, but I have my doubts about the level of interest most men will have in the shorts-suit concept.  If for no other reason but cost.  Gen Y are the potential consumers for this latest fashion development.  And I'd be willing to bet that if they have to drop a chunk of change on a suit for a new job, it'll be for a suit they'll actually be able to wear.  It's difficult to imagine the young man who would forgo the navy blue standard in lieu of a khaki-colored pair of shorts and matching jacket.  Let's face it--he'd rather spend his money on something else, anything else, other than a suit in the first place. 

Of course, if a male colleague showed up to work wearing the shorts-suit styled like the gentleman's in the picture, above, he may be laughed out of the office, black dress shoes, white ankle socks, and all, before he had a chance to explain that the NYT had given his outfit the official thumbs up. 

Workplace attire is a topic that just doesn't seem to go away. Dress codes and style rules for the modern worker get continuous coverage in the media.  Apparently, fashion is not just for the fashion columns anymore.  Fashion is a part of the business world, like it or not.  This modern-day fashion challenge is especially prevalent with Gen Y employees. 

Gen Y is known for its casual approach to work attire.  A generation that grew up wearing flip-flops and baring their belly rings can be particularly defiant of a conservative dress code.  The Millenial mantra for fashion may be coined, "Comfort Is King."  But that position often conflicts with the expectations of management. 

It can also prevent Gen Y job candidates from landing the job in the first place.  Candidates who come to an interview dressed in clothing that stands out as casual, trendy, or "young" will have a more difficult time making the cut.  And they may never know why. 

So what's a 21st-century fashion savvy job seeker to do? Generally speaking, don't take chances.  The interview is not the place to demonstrate your appreciation for cutting-edge couture.

And what about the rules of engagement for employers?  Although some will surely disagree, my position is to err on the side of caution.  If a potential employee comes to the interview with hot pink fingernails and Cyndi Lauper-style eye shadow, don't assume that she'll magically know better by the time she arrives for orientation, or that she'll "get the message" once she start work and sees that her colleagues are all dressed in more conservative garb. They won't.

Gen Y is known for its fantastic sense of entitlement and are unlikely to be particularly understanding or appreciative of the message that their clothing choices are unsatisfactory.  So, if you hire a candidate who makes his first impression by wearing a vintage Van Halen t-shirt under an Armani suit blazer, just be aware that you'll either have to accept his particular style choices or be prepared to have the uncomfortable "dress-code discussion" that will inevitably be required.

Accenture has come up with a great way to communicate its dress code and, with any luck, to prevent that dreaded conversation from ever being necessary in the first place.

Related Posts on Dress Codes:

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Everyone's talking about dress codes.  Pantyhose or no pantyhose?  Flip-flops causing mutiny in the workplace. What not to wear is not just a TV show, it's regular water cooler talk these days.  A new case filed by the EEOC shows a much more serious side of the dress-code debate--how dress codes can turn into discrimination.

The Equal Employment Opportunity Commission has sued Texas business, Champion National Security Firm, for religious discrimination after the company did not hire a Sikh who refused to shave his beard and take off his turban.

The claimant, Sukhdev Singh Brar, applied for a position as a security officer, was called for an interview and then got the job.  Well, almost.  Brar alleges that a company representative told him, "'I'm going to hire you, but you have to shave and take off your turban."  Brar says he told the interviewer that her request was against federal law and his religion. 

But she was not dissuaded.  Even after he told her that it was against his religion to cut his hair and remove his turban, she told him that this was the company's policy and the policy wasn't going to change.  "I cannot cut my hair. I cannot take off my turban," he said.

Title VII prohibits employers from discriminating against employees and applicants because of their religion when making decisions about hiring, firing, and other terms and conditions of employment.

The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee's religious beliefs.

The standard for religious accommodations is "undue hardship."  But what exactly is  an undue hardship? According to the EEOC, "an employer can claim undue hardship when accommodating an employee's religious practices if allowing such practices requires more than ordinary administrative costs."  The EEOC goes on to identify some examples of a religious accommodation:

Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.

The undue-hardship standard is substantially easier to meet as compared to the standard used in disabilities accommodations. But, even under a lenient standard, the employer must still have a reason for refusing to accommodate a religious request.  And just saying, "Well, that's our policy" is not going to cut it.  I'd be interested to know what the company's defense will be; what will it claim was the hardship?  And the employer may very well have one--it refused to settle (or at least to settle on the terms offered by the EEOC).  Employers stay tuned, the dress-code debate is sure to heat up.

Dress codes prefer males over females.  Ok, maybe not. But it's hard to deny that men who work in jobs that expect traditional, corporate-minded attire, certainly have far fewer choices than women.  And fewer choices can mean fewer mistakes.  Let's face it, a suit is a suit is a suit.  Granted, men can make some pretty bad choices about their tie-shirt combos but it's quite different than selecting accessories like earrings, necklaces, scarves, shoes, and the list goes on.

I recently read a post by Laurie Ruetimann at Team Building Is for Suckers, which talked about an article in The WSJ  on the issue of women's choice for work wear and the effect it really has on their success.  Her post raised some interesting questions about whether there is a double standard when it comes to fashion choices by men and women. 

Among practicing attorneys, the belief that lawyers should "look like lawyers" remains firmly in place.  Even less conservative attorneys that I know would never consider going to see a client or giving a seminar in anything other than the traditional blue or black suit.  Brown doesn't cut it, for those of you who were wondering.

Personally, I have many times struggled with "what not to wear" as the show's title goes.  I, for one, take my fashion choices pretty seriously.  Ok, maybe even too seriously. But, knowing that I tend to be far more fashion forward than fashion conservative, I try to be especially aware that I don't cross the line--wherever that may be. 

The most grounding experience I've ever had regarding professional attire occurred before I ever was a professional.  The "memorable" and eye-opening encounter occurred during law school when I participated in a intra-school "moot court" competition (think debate team for lawyers in training).  My female teammate and I burned through our competition during the early rounds and suddenly found ourselves, unexpectedly, in the semi-finals. 

Our opponents, two men, were friends of mine.  They were also very good oralists and were taking the competition very seriously. The panel of judges were actually "real" judges, who volunteered their Saturday afternoon to attend the event, fire questions during our arguments, critique the speakers, and, in the end, declare the winners.  Our panel included two male and one female state court judges.  The men ranked significantly higher than the woman in the judicial hierarchy.

Our opponents went first and, without a doubt, were outstanding.  Then, it was our turn.  We gave an equally outstanding performance.  I was thrilled.  My family had come to watch and I was so proud to have made what I knew was a finalist-worthy argument.  I was excited to hear the critique of the judges but, honestly, did not particularly care whether we advanced or not. 

The satisfaction of performing at my best was satisfaction enough.

The judges gave our adversaries their critiques first.  As is the norm, they included both good and bad points.  Hearing the comments, I knew we were going to be declared the winners--all of the points where they had done poorly, we had performed at a top level. 

Finally, it was our turn and my teammate and I walked to the podium to hear from the judges. There was a true audience in attendance, too.  The family and friends of each of the four participants, as well as participants who had been knocked out in earlier rounds, and the hosts and volunteers running the event were seated in the auditorium style seats behind us.  I was beaming with pride.

The male judges spoke first. Each of their points were right on target.  They'd caught us when we'd struggled for answers or tried to evade their questions.  They commented on our demeanors and our use of eye contact. 

The female judge was the last to speak.  She began with my partner and then turned her comments to me.  She made a few, half-hearted introductory points, like, "Overall, your presentation was very competent."  Then the niceties were over.  She glared at me, looking over the rim of her eyeglasses, which sat perched at the end of her nose.  And, without emotion, she announced that we would not be proceeding to the final round. 

Without hesitation, she declared that she had voted for our opponents because I had not worn a skirt. 

A skirt. 

That's right.  I had worn a pants suit to the argument.  For no reason other than, at the time, it was the nicest suit I owned.  The one skirt suit I had was fairly worn and I wanted to make sure that I presented the best appearance possible. 

She explained in an almost angry tone that, if this was the real United States Supreme Court (instead of the mock trial version), would I have really shown up in pants?  She almost shuddered in disgust when she finished the sentence.  

Clearly, she went on, I had not taken this competition seriously.  It was a flagrant act of disrespect for me to make the fashion choice that I had made so flippantly. 

She continued on about the trials that the women before me had been forced to endure so that I could even attend law school today or have any shot at success in my chosen profession. She continued on. 

But, by that point, I was no longer listening.  I was fuming.  It took every ounce of self-control I could muster not to react.  I wanted to cry over the sheer humiliation I felt as she berated me in front of my mother, my father, and an entire room full of strangers.  More than that, though, I wanted to tell her that it was women like her that would force my daughters and granddaughters to continue to fight for true equality in the workplace.  Not the two men who sat beside her--they had been courteous and genuine when they spoke.  It was clear that they believed in each of the participants and felt a kind of true joy to see what would develop into the next generation of lawyers.

It was her, the only woman on the panel, and women like her, that the future generations had to worry about.

And what about now?  Now do I wear a skirt suit or a pants suit when I go before the Court?  I'll be honest and say that it is something I consider each and every time.

Don't know the difference?  Residents of Delaware, Maryland, New Jersey, and Pennsylvania sure do.  "The Shore" refers to the New Jersey Shore and all of the wonderful towns that it includes.  "The Beach," on the other hand, refers to the Maryland and Delaware Beaches, including Ocean City, Maryland (not to be confused with Ocean City, NJ, of course), Rehobeth, and Lewis, Delaware, to name a few. 

Any self-respecting East-Coast native knows that Memorial Day weekend is synonymous with the start of the summer.  And with the summer comes the shore or beach, depending on your current geography. 

And what, you ask, does this have to do with employment law?  Lots, actually.  Just ask the blogosphere.

Dan Schwartz, at the Connecticut Employment Law Blog, for one, can point to three e-law items with strong ties to the beach season.  All three are right on target.  He reminds employers to take a refresher course in vacation and paid-time-off policies.  Because, let's face it, the major highways aren't log jammed on Fridays at 1 p.m. by mere coincidence. 

Dan also points out the need to be aware of the very common summer parties where interns may bring a bit more casual approach.  Hey, let's face it, once August comes around, it's not their problem anymore.  Permanent employees, though, must carry with them the effects of their conduct at the end-of-summer BBQ. 

In fact, the only difference between the pool party or the Margaritaville fiesta and the office holiday party is that one involves, in fact, expects, there to be a lot fewer layers of clothing. 

Just looking at this combination alone, you can derive several potential concerns. 

1. Young summer interns.  Remember, the EEOC is watching over them and watching you in the meantime.
2. Summer parties that start at 8 p.m. instead of the holiday party, which starts at 4 p.m.  No one can leave the office early during the summer workweek (Monday - Thursday) because they need to get enough done not to feel guilty when they take a half day on Fridays.
3. Margaritas, Daiquiris, and other fruity concoctions go down easy all year round but most especially when it's 85 degrees and 89% humidity.

Of course, I love summer as much as the rest of the East Coast summer junkies and, by no means, am I trying to spoil anyone's fun in the sun.  But employers beware.  The cocktail above serves up a legitimate legal liability.

Have a great holiday weekend!

Some recent reports about law firms trying to persuade associates to dress better, and even hiring coaches for them, are a reminder that the pendulum seems to have swung back from the days when even old timers were “dressing down” to try and “connect” with the wealthy young techie entrepreneurs.

I, for one, am pleased to see a move toward more moderate dress.

There has been silliness on both sides of the continuum. Some years ago, the Delaware Supreme Court, in its infinite wisdom, issued an edict that lawyers appearing before it had to wear white shirts. So much for sartorial creativity.

But if I were seeing a lawyer, I’d feel more confident if he or she were wearing a white shirt than jeans or running pants. While I don’t think we need to force associates to pore over “Dress For Success,” I think that dressing up a bit is a step in the right direction, both for the lawyer’s self-image and the clients’ confidence in the attorney. Maybe ties can be optional, especially in the summer, but there’s nothing like a suit or at least a sport jacket to establish a tone of authority (deserved or not).