Dress Codes: Summer Version

It is hot, hot, hot in Texas and many employers must decide whether to crank up the A/C, or relax the dress code policy and risk turning up the heat in the office as tank-tops, shorts and flip-flops make their way onto the fashion scene. For employers, the rising temperatures may result in employees wearing skimpier wardrobes that could show more than employers want to see, including, for some, tattoos and other body art.

Too Revealing?

In hot weather employees often reveal too much skin by lowering necklines or heightening hemlines. This is nothing new to the workplace, but if a company doesn’t address these matters properly, it may leave itself vulnerable to the possibility of legal action.

It is critical that dress code policies be enforced equally for men and women, as discrimination claims against employer dress codes often focus on gender discrimination theories. Employers rarely come out on the losing end of these lawsuits; however, litigation can be both costly and damaging to a company’s reputation.

Tattoos: A New Challenge

Addressing policies on tattoos and other forms of body art, including piercings, may be new territory for many employers. The number of Americans sporting tattoos is on the rise. In fact, a 2013 study by Pew Research Center shows that 14 percent of Americans now have at least one tattoo, and that statistic increases to 40 percent among adults ages 26 to 40, meaning employers are likely to see more “ink” than ever before.

If body art is an issue for an employer, it is important to develop a reasoned policy based on legitimate business interests. For some, the policy may need to outline what is appropriate for different jobs within the company. A policy stating that tattoos cannot be visible may be appropriate for positions in customer service, but not necessarily for those who have no customer contact. Employers also should remember that some tattoos or other body art may have religious affiliations, which may require an exception to the policy.

Tips for Dress Code Policy

Employers need to know where to draw the lines. They should:

• Have a written dress code policy detailing what is acceptable and unacceptable, with examples.
• Communicate policies with all employees. It is often helpful to require employees to sign a form acknowledging receipt and commitment to comply with the policies.
• Consistently enforce policies; only make exceptions when you must in order to reasonably accommodate employees based on a protected status (religion, ethnicity, etc.).  
• Enforce the same, or similar, policies for men and women. If it is absolutely necessary to include different standards, make sure neither gender faces a greater burden when complying.
• If there is a need to discuss the wardrobe of the opposite sex, it is typically best to have a person of the same gender as the employee present in order to avoid problems.

Most businesses have official dress codes, but often employers decide to adopt a more casual dress code in the summer. If an employer is worried that employees may push the envelope and pose significant challenges, it may be best to enforce the standard company dress code year round.

Either way, smart employers will communicate and implement policies before issues arise, lest an employee claim the rules targeted them unfairly. When reviewing or formulating a dress code, be sure it is reasonable, nondiscriminatory, and founded on legitimate business interests. This way you can beat the heat, without getting burned.

Michael V. Abcarian is the managing partner of the Dallas office of Fisher & Phillips LLP, a national labor and employment law firm. Reach him at mabcar ian@laborlawyers.com.