It is hot, hot, hot in Texas and many employers are wondering whether to crank up the A/C, or relax the dress code and risk turning up the heat in the office if skimpier wardrobes bare more than some want to see, including unwelcome tattoos.

The number of Americans sporting tattoos has risen dramatically in recent years. In fact, a 2015 study by The Harris Poll shows that 29 percent of Americans now have at least one tattoo, and the number increases to nearly half of Millennials (47%) and over a third of Gen Xers (36%).

“Addressing tattoos in the workplace is a relatively new situation for many employers,” said Michael V. Abcarian, managing partner of labor and employment law firm Fisher Phillips’ Dallas office. “If tattoos are an issue for an employer, it is important that they develop a dress and grooming policy based on the company’s best interests and lawful workplace regulation principles. Additionally, the policy may need to outline what is appropriate for different positions within the company. A non-visible tattoo policy may be appropriate for positions in customer service, but not for those whose jobs do not involve customer contact. Employers must also keep in mind that some tattoos may have religious affiliation, which could require an exception to the policy. Other than tattoos that have religious meaning, tattoo and summer dress code policies should be consistently enforced for both men and women.”

If tattoos and summer wear seem to cross the line, employers need to know what may be considered unlawful when enforcing dress code compliance.

Here are a few tips for deciding how to handle a company’s summer dress code:

• Have a written dress code policy that details what is acceptable and unacceptable, with examples.
• Communicate policies to all employees. It may be helpful to consider in some instances requiring that employees sign a form acknowledging the policies.
• Consistently enforce dress code policies; only make exceptions when you must in order to reasonably accommodate employees based on a protected class (such as 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 sex faces a greater burden.
• If there is a need to address an employee’s wardrobe, it is typically best to have a person of the same gender as the employee present in order to avoid an appearance of sex discriminatory motivation.

Smart employers will communicate and implement policies before issues arise, lest a wayward employee claim that the rules unfairly target them.  When reviewing or forming a dress code, be sure it is reasonable, nondiscriminatory, and founded on legitimate business needs.  This way you can beat the summer heat, without getting burned by a cold employee.

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