Answers to workplace questions on dress codes, gossip, and other issues

Running a business — or managing a single unit, department, or team within a business — is not easy. Questions that have legal and/or regulatory implications pop up on a regular basis. Answers to some of those questions aren’t always straightforward and can require insight into various statutes as well as case law. This article shares a handful of common scenarios and some interpretive guidance.

Question: Our company dress code has different rules for men and women. Specifically, women may wear earrings, while men may not, and women may wear sandals without socks, while men may not. A few employees have suggested that the rules are discriminatory. Are these sorts of disparities in the dress code acceptable from a legal perspective?

Answer: The U.S. Equal Employment Opportunity Commission has held that companies may create different dress codes for men and women in an effort to create a professional atmosphere without violating Title VII of the Civil Rights Act. However, the policy should reflect social norms and business needs, and the standards for employees of one sex shouldn’t be considerably more restrictive than for the other sex. So while the company may have a requirement for employees to present a well-groomed, professional appearance, the actual rules may accommodate sex-based differences, such as different hair lengths, or earrings allowed for women and not for men. 

Question: An employee has claimed that she is subject to a hostile work environment because other employees have been making fun of her behind her back. Can gossip constitute harassment?

Answer: A hostile work environment is one that a reasonable person would consider intimidating, hostile, or abusive. However, for a hostile work environment to be considered illegal harassment, the comments would need to be based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.

If not based on these protected classes, ridicule or mockery from other employees is not likely illegal. However, it’s still a good idea to address the situation and make it clear that such behavior is not acceptable in the workplace. This may prevent the situation from escalating into illegal harassment and also sends the message that disrespectful behavior is unacceptable.

Question: From time to time, a manager will contact an off-duty, nonexempt (hourly) employee via text message. Must the company pay for the time it takes the employee to read the text and respond?

Answer: While employers must take care to pay nonexempt employees for all hours worked, the Fair Labor Standards Act says that insubstantial or insignificant periods of time beyond an employee’s scheduled working hours that cannot be precisely recorded for payroll purposes may be disregarded. These periods of time are probably less than one minute, or maybe even two minutes.

However, the frequency of such calls could come into play. If you text an employee frequently, and each exchange takes two or three minutes, the time can start to add up. While there’s no set amount of time that must be paid, courts have found that 15 minutes is not an insubstantial amount of time.

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Question: Our company conducts annual training for employees covering our anti-discrimination policy, which includes a prohibition on sexual orientation discrimination. One of our employees has asked to be excluded from any portion of the training that deals with alternative sexuality because of her religious beliefs. Must we excuse her from the training?

Answer: No. Most similar employer training does not tell employees to value different sexual orientations but simply discusses and reinforces your company’s conduct rule requiring that employees not discriminate or harass other individuals based on sexual orientation. If this is the case at your organization, you are not required to excuse the employee from the training. In fact, according to the EEOC, because your company needs to make sure your employees know about and comply with your workplace rules, it would actually be an undue hardship for you to excuse the employee from the training.

Question: When may employers use pre-employment physicals?

Answer: Under the Americans with Disabilities Act (ADA), employers may not require medical inquiries or exams before making a conditional offer of employment to an applicant. Employers may, however, make a job offer conditioned on the satisfactory outcome of a medical exam or inquiry, provided that the employer has the same requirement for all individuals entering a particular job category.

Katie Loehrke is a human resources subject matter expert and editor with J.J. Keller & Associates Inc. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter. 

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