By Jill Conner, 
Over the past few years, the workplace has slowly become more accommodating to personal lifestyles and needs with working from home, flex hours, and trendy new casual dress codes.
Nevertheless, it hasn’t become lawless. Conduct rules and dress standards, even in a casual environment, have their limits. But what if you seemly follow the dress code policies and yet your employer has a bone to pick? What can an employer dictate about your personal style?
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Traditionally, the court has deemed that not only can an employer set a dress code but that those dress codes can be different for men and women as long as they aren’t overly burdensome to one group. Courts have even stated that employers can ask employees to conform to sex-based stereotypes. However, these days the concept of dressing based on gendered stereotypes is under scrutiny and possibly becoming less permissible.
This means an employer may have a men’s and a women’s uniform, but they may not be able to necessarily dictate that people who are biologically female can only wear the women’s uniform and vice versa. There are currently two Supreme Court cases involving Title VII and discrimination based on sexual orientation and identity. One involves dress codes specifically.
There may be exceptions. If someone works at a nuclear reactor much of the dress code may be based on safety and as Adam Augustine Carter of The Employment Group, P.C. states, “...safety equipment fits men’s and women’s bodies differently. They may need to protect women’s and men’s body parts differently.” Thus, dress codes may need to be based upon a person’s sex as opposed to their gender identity.
Generally, employers can make dress code choices based on safety or on a theme/style such as a medieval-themed restaurant without gender bias. But if they request a change from an employee, it needs to be either for a violation of a policy or for an occupational reason. As Andrea Lovell of Littler Mendelson P.C. states, “Ultimately any workplace appearance [request] should be work-related.” And as Julie Adams of FordHarrison says, “You would run into problems by targeting one person.” Dress codes need to be enforced consistently.
Asking an employee to dress up or differently for a specific event is fine as long as there is a “bonafide occupational reason,” states Carter. The same logic can be applied to someone following the dress code. For instance, if someone in an office environment that has a casual dress code but comes dress as Alan from "The Hangover" one day and Sheldon Cooper from "The Big Bang Theory" the next as if every day were Halloween. While this doesn’t break code, it can be off-putting.
Can an Employer express their opinion on your clothes?
How an employer addresses someone’s appearance is important as Carter demonstrates, “You can say, ‘nice dress’ not ‘you look great in that dress.’” And if an employer does have an opinion about someone’s style, the way they prefer can’t be stated unless there is a reason, but they can compliment.
For example, an employer may prefer when a female employee has her hair up. Stating “I prefer your hair up,” would probably cross a line unless there is a safety or hygienic issue. However, complimenting it: “I like your hair.” When it is up, would be fine.
When Comments become Discriminatory
There is also a line as Carter points out, “…when [comments on] personal appearance such as hair or piercings are being a proxy for invidious discrimination.” An employer may state employees can’t have dreadlocks, if it isn’t for a safety reason, this could be a proxy for race discrimination since people who usually have dreadlocks are African American.
If your manager does state that you are in violation of the dress code and you don’t think you are, Carter suggests checking with your HR department. "HR is supposed to be an honest broker between employee and manager.”
If HR deems your dress acceptable and this has become a repeat issue, you can as Lovell states "have a conversation with the manager directly.” Hopefully, you can hash out any dress code issues. Adams reiterates this idea but admits, “This can be uncomfortable, but it is worth giving it a shot.” It is possible the intent behind the manager’s comments may not be what you think. However, if you don’t feel comfortable with this, you can ask HR to step in.
Dress code policies are subjective and can be highly situational so hopefully, your workplace has clear policies. If they don’t, get clarification and examples of what is acceptable and what is not. Dress codes are important to the work environment, but they are not subject to the personal preference of one manager.
If you do feel you are being discriminated against, seek the advice of a qualified employment attorney.
