The Issue: a Scruffy Financial Planner
In this case scenario, we examine what happens when a manager at a large commercial banking institution has an employee who refuses to follow the dress code.
A financial planner with clients who visit him at the office from time to time, the man shows up for work in pants in need of hemming, unpolished shoes, and clashing shirt and tie combinations. One hot summer day, he arrived in a short-sleeved shirt, no tie, a Mets cap, and sandals displaying conspicuously unpedicured feet. Sometimes he neglects to shave; he occasionally sports a goatee.
Such choices definitely fall into the unacceptable category for his occupation, says Jennifer Maxwell Parkinson, an image consultant and founder of Look Consulting International in New York City. "Financial professionals need to appear relatively conservative so clients trust them," she says. "You don't want to question how they look. People expect a well-fitting suit or dress, a beautiful shirt and tie for men, and nothing too flashy."
Dress Codes Are Legally Enforceable
And the company dress code policy specifically forbids all of the offending wardrobe and grooming choices the gentleman has made.
Before speaking to him about it, the manager consults human resources in regard to Title 7 of the Civil Rights Act of 1964, which outlaws discrimination in the workplace—and can pertain to personal appearance.
As for the beard, leeway can exist under civil rights law. "Some African American men get a painful reaction to shaving," explains Mike Wietrzychowski, an attorney with the labor and employment practices group at Schnader, Harrison, Segal & Lewis in its Philadelphia and Cherry Hill (N.J.) offices. "They should be allowed to wear beards." Of course, although rarer in occurrence, men of other races who have beards for medical reasons should be exempt from the rule as well.
The manager notes that his goatee-wearing financial planner is Caucasian. When asked whether he has a physical condition that necessitates the beard, the man says no; he just likes the way it looks.
Next, the manager ascertains the company is also within its right to enforce the no-hats-indoors policy in regard to the baseball cap. "Under Title 7, the company would have to make reasonable accommodations if the head covering was a yarmulke or turban worn for religious reasons—but baseball caps aren't covered," says Melissa Fleischer, an attorney who is president of the HR Learning Center, a human-resources consulting and training firm in Rye, N.Y.
Does Success Trump the Code?
Having determined that none of the complaints about the man's appearance constitute unlawful discrimination, the manager calls his poorly dressed associate into his office for a talk. He explains how much the company values the employee's work but that it cannot allow him to violate the dress code to which his colleagues conform.
The employee respectfully refuses to comply, pointing out that he generates healthy revenue for the company, many of his clients communicate with him only by phone, and those who visit him in person have never complained. It's performance that matters, he insists, so what's the difference whether he shows up in a Brooks Brothers pinstripe suit or polka-dot pajamas?
The day after the talk with his manager, the employee wears a rugby shirt and jeans to the office, in clear violation of company policy. His manager feels disrespected and wonders how he can excuse one employee's digression when all the others comply. To make matters more complicated, the employee does indeed perform well at the company.
Nonetheless, the manager fires him the next day.
Making exceptions for one employee—even a high-performing one—who violates company policy on dress code would set the stage for trouble
Did it make sense for a manager to terminate a revenue-generating employee simply because of dress-code violations?
"You want to ask first, 'Is this a wise use of power?'" says Bruce Barry, a professor of management and sociology at Vanderbilt University and author of the book Speechless: The Erosion of Free Expression in the American Workplace (Berrett-Koehler, 2007). "There are a lot of smart, talented people out there who don't like to dress up."
Were this not a work environment where clients visited, it might be moot. "If people are in a back room, maybe you can just scrap the dress code altogether," says Mike Wietrzychowski, an attorney with the labor and employment practices group at Schnader, Harrison, Segal & Lewis in its Philadelphia and Cherry Hill (N.J.) offices.
Good at Ignoring the Rules
Then how about making an exception and allowing the high-earning employee to dress as he pleases—a perquisite given because of his performance and consistently proven ability to generate revenue? Doing that could cause legal problems down the road, according to Wietrzychowski. "If you make an exception for a guy who doesn't wear a tie because he's a great employee, and then you fire a minority for not wearing a tie, you may have to prove your business decision is right in court. You want to be as consistent as possible."
He also points out that there are likely plenty of capable job candidates out there who would like to take a shot at the position—and be delighted to dress professionally for it. "And consider this: How can the high-earning worker be a 'good employee' if he chooses to ignore the dress code?" Wietrzychowski asks.
Dress Code Due Diligence
Barry and Wietrzychowski agree that the manager had no choice but to terminate the motley worker, and that he did it correctly:
1. He checked with HR to make sure the employee had been made aware of the dress code policy.
2. He made sure the wardrobe and grooming digressions were not protected by Title 7 of the Civil Rights Act of 1964.
3. He correctly determined that the firm clearly could not deviate from the rest of the industry by abolishing the dress code altogether. Maybe this particular financial planner's clients didn't mind his slovenly appearance, but that doesn't mean his colleagues' clients would feel the same way.
4. The manager kept the actual termination meeting professional and well-documented.
Clearly the financial planner is someone who lacks the proper respect for authority, so the manager has done everything possible to mitigate ill-feeling—and the prospect of legal consequences—on the part of the fired employee. According to Linda Wong, partner at Wong Fleming, a Princeton law firm specializing in employment law, "Reasonable dress code policies usually hold up in court."