From T’s to tats, dress codes are key for entrepreneurs

Ink about it: Spelling out employee dress and personal-appearance requirements is a critical -- and often overlooked -- step for entrepreneurs, according to Eugene Barnosky.
By EUGENE BARNOSKY //

An entrepreneur’s mission statement – core values, branding, image – is important, particularly regarding employees’ personal appearances.

And a manual that communicates to employees what is expected of them from the outset is often critical to efforts to assemble an efficient and effective staff, and to provide them with the tools they need to help create good will with clients and customers – and maintain it.

Although it may not be high on the entrepreneur’s list of priorities, an important element of any policy manual is a personal-appearance and dress code. Establishing such codes in advance and providing them to job applicants can help avoid unnecessary claims that often lead to litigation.

While an employer does have the right to establish dress and appearance codes, care must be taken to comply with federal and state law. The overarching principles are that dress or appearance codes must be applied equally, and must be flexible enough to allow accommodation for an employee’s disabilities or religious beliefs, among other things.

Eugene Barnosky: For appearance’s sake.

An open and honest line of dialogue goes a long way. One of the most important and substantial steps an employer can take while establishing a dress code is to plainly articulate the rationale for any requirements. Legitimate and common business purposes for dress codes include promotion of the company’s image and safety concerns, and those purposes should be spelled out in the codes.

A dress code, of course, is a fluid concept, one that can be altered over time with changing beliefs, styles and customs. Over the past several decades, the workplace has changed significantly in many industries; for instance, many professional-service companies now allow casual-dress days.

What constitutes acceptable attire for business-casual or summer dress is, for the most part, up to the employer. But your policy manual should give clear and explicit examples of inappropriate clothing items – examples may include shorts, halter tops, T-shirts or sweatpants.

Of course, an employer must be flexible if certain forms of attire are necessary because of a medical condition, and the U.S. Equal Employment Opportunity Commission has issued guidance on religious dress in the workplace. Business owners should consult with their attorneys to assure compliance.

Tattoos, body piercings and other forms of body art have increased over the past several years, especially among Millennials, and this has landed some businesses in court. Cases dealing with discrimination on the basis of personal appearance often result in rulings for the employer, if the employer offers a reasonable accommodation to the employee (courts once upheld the termination of a cashier for violating a company dress code, where the “reasonable accommodation” offered by the employer was to put a Band-Aid over her piercings).

Likewise, if an employer offered to hire a person with offensive forearm tattoos, it would be reasonable to require the employee to wear a long-sleeved shirt. The decision on tattoos is, again, largely up to the employer, who best understands the needs of his or her business and is in the best position to determine what’s appropriate and what’s not.

In light of recent amendments to New York’s anti-harassment laws, employers should remember that allowing an employee to display something offensive on a regular basis could make an employer liable for creating a hostile work environment, which does not have to be “severe or pervasive” to be actionable.

Employers must remain vigilant regarding workplace anti-discrimination laws. Policies should be periodically reviewed to assure compliance with evolving legal requirements.

For example, the New York State Human Rights Law, which protects employees from discrimination in the workplace, was recently amended to expand the definition of race to include “traits historically associated with race including … hair texture and protective hair styles,” a term that includes, but is not limited to, “braids, locks and twists.”

As entrepreneurs establish their companies, they should consult with professionals to draft employee manuals that enhance and establish their images and goals while avoiding undue restrictions on dress or appearance – restrictions that could ultimately lead to discrimination claims.

Eugene Barnosky, Esq. is a partner at Melville law firm Lamb & Barnosky LLP, where his practice focuses on education, employment, labor, municipal, real estate and land use/planning/zoning law.