When appearance policy goes too far

Navigating dress and appearance requirements necessitates the consideration of long-term and legal ramifications, according to one employment lawyer.

The strongest and most appropriate appearance policy does not eliminate the potential for unintentional discrimination.

According to Joel Hayden, practice group leader at LegalVision, the risk emerges when regulations toe the line between safety, hygiene or practicality requirements to image alone, noting that Australian employers should be setting appearance rules “where they are lawful, reasonable, and connected to the work being performed”.

“The line is crossed when a policy targets, excludes, or disadvantages someone because of a protected attribute, rather than because of a genuine workplace requirement,” he said.

While this may seem simple on paper, the reality has shown that many employers and businesses struggle to identify and enact this policy in practice. The hiring process, Hayden said, is the perfect storm for unintentional discrimination, with organisations having to balance suitability for a role while remaining unprejudiced.

Acknowledging this difficulty, Hayden surmised that “a business should not reject a candidate because they ‘do not look like our brand’ if that masks age, race, gender, disability or religious bias”.

Hayden said that certain policies may unintentionally breach religious beliefs, such as that of being clean-shaven, or even personal expression, such as tattoos, that organisations may struggle to justify legally.

In this way, “employers should not assume the policy is safe simply because the same wording applies to all staff”.

Hayden urged businesses to avoid vague phrasing such as “professional appearance … neat feminine makeup … no extreme hairstyles”, and to build policy on provable frameworks rather than personal preference.

As such, managers should be trained on how to raise appearance concerns respectfully and based on policy. As recently reported, this is best done by addressing issues early and leading with empathy.

Hayden furthered that employers should use private and neutral language that focuses on the workplace requirement and avoids subjectivity or body-specific comments, and be receptive to any religious, medical, or cultural concerns an employee may raise.

Further, businesses should take their time in responding to disputes to avoid turning “a minor uniform issue into a discrimination or unfair dismissal dispute … [or] a general protections claim if the discipline or dismissal was connected to a protected attribute, workplace right or complaint”.

Hayden surmised that businesses should identify the genuine reason for each rule, adding that “specific policy is safer than a long list of subjective grooming standards”.

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