Davida Perry, Esq. – Are Dress Codes Still a Thing?
Have you noticed how the people you encounter at different businesses have very different ways of dressing for work? At some there seems to be a consistent dress code, while at others it seems like the wild west. Surely it should match the brand image of that business, but sometimes it doesn’t seem to. I was curious as to what you, as the business owner or manager can legally require of your employees. So, I invited Davida Perry, an expert on employment law to join me and help sort this out for you.
Listen to this new episode for some ideas that you can use to decide what’s right for your business.
About Davida Perry:
Davida S. Perry is the co-founding and managing partner of Schwartz Perry & Heller, a boutique law firm focusing exclusively on representing individuals in all areas of employment law, including discrimination and sexual harassment cases. Ms. Perry holds an “AV rating with preeminence” from Martindale Hubbell, has been listed by Thompson Reuters as a New York – Metro Area “Super Lawyer” every year since 2009, has been a “Woman Leader In The Law” every year since 2012 by ALM Media and has been recognized by City & State on its Law Power 100 list. Ms. Perry has co-authored numerous articles and publications for programs sponsored by the New York State & City Bar Associations, the National Employment Lawyers Association,. Thomson Reuters and the Practicing Law Institute. Ms. Perry has also lectured extensively on employment law for various continuing legal education providers such as Lawline and The National Law Institute. Ms. Perry is a mediator with the United States District Courts of the Southern and Eastern Districts of New York, as well as with the New York and Richmond County Supreme Courts. Ms. Perry also serves as a mediator and arbitrator with the American Arbitration Association.
Connect with Davida Perry:
LinkedIn: linkedin.com/in/davidaperry
Davida S. Perry
Schwartz Perry & Heller LLP
3 Park Avenue, Suite 2700
New York, New York 10016
P: 212-889-6565
If you have any questions about anything in this, or any of my podcasts, or have a suggestion for a topic or guest, please reach out directly to me at [email protected] or visit my website Podcast.AlanBerg.com
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– Are dress codes still a thing? Well, listen to this episode and find out. Hi, it’s Alan Berg. Welcome back to another episode of the “Wedding Business Solutions” podcast. I am honored to have on a friend of a friend to talk about this who is an expert. Her resume is amazing as an attorney, Davida Perry. Davida, nice to meet you.
– [Davida] Nice to meet you, Alan.
– Well, thanks. So I saw this article. I told you this when I reached out to you. I saw an article about dress codes and what can you tell people to do and visible tattoos and things like this at work, and my wife and I started talking about it and realized that we’re in our own bubble. We’re of a certain age. We knew what was expected when we went to work, you know, back in the day, and, you know, even now, and we noticed that it’s different. It’s different now what might or might not be acceptable. I’m not even sure if it is acceptable, and this is why I wanted to bring you on, because we see things and sometimes scratch our heads and go, is that allowed? So tell us a little bit. Give a quick little background on yourself, and then talk a little bit about this.
– So, thank you. Thank you for all of that, and thank you for having me. I’m an employment lawyer. I represent employees, not employers, in claims of discrimination in the workplace, and I’ve been doing it for almost 40 years, and boy oh boy, has it changed over that many years of practice. Essentially, when I say changed, the categories of individuals that are protected by the human rights law have changed over time. My dad, who founded my firm, used to say that “the law is very smart,” and it is. It knows who needs protection, and so we’ve grown over the years. Dress codes, so dress codes are okey dokey at work. Employers can, you know, mandate a way that they want their employees to appear, and as long as that dress code is being uniformly implemented, meaning one category of person isn’t being targeted by the dress code, it’s going to be fine. And if you want to keep your job, you’re going to have to adhere to the dress code. Same-
– Okay, well, and I just want to remind everyone, we are not giving legal advice here, even though you’re a lawyer.
– Right.
– Because we do have people all over the country and around the world, and it’s going to be individualized. But from this standpoint, so you said by category. So, in other words, we can tell waiters they have to dress a certain way, but managers can have a different?
– Right, right.
– Okay.
– You know, you can’t just have a uniform for the women, but allow the men to wear T-shirts and jeans at work, you know, while the women are wearing this sort of onerous, you know, uniform. That wouldn’t be fair. It needs to be uniformly implemented. And, you know, there are certain jobs where, I won’t name any particular employers, but by the nature of the job, the attire is going to be a little bit risque, let’s just say. And again, as long as that uniform, air quotes around the words uniform, is uniformly being implemented, it’s going to be okay. You know, there are certain types of clubs and restaurants where the whole nature of the business is to present the staff a certain way. I’m trying to stay away from the names of-
– Well, and again, this is the wedding and event industry, but if we were to think of bachelorette parties or bachelor parties, you know, hen parties, you know, across the pond, there are hen parties and stag parties, where that is part of that. It’s not the main part of weddings, we would think. But that said, you might invite an entertainer of some kind who-
– Right.
– might have to dress a certain way. And we see it at industry events where people are showing off Cirque Soleil-type performers and things like that where they dress a certain way.
– Right.
– So let’s get back to, I know you did air quotes around uniform uniformly, so let’s just talk about uniform for a second. What’s the difference between saying to someone you have to dress a certain way and making that becoming a uniform?
– So, you know, I think you can say, you know, for like a law firm, you want the person, I would think that you want the person sitting at the front desk to have, whether it’s, you know, any gender, you know, a professional look. You know, you don’t want them wearing a T-shirt and jeans, let’s say. You want them to have… You know, it could be very general when you say professional. It could be anything from a suit and a tie for a man or, you know, a blazer and a pantsuit for a woman, to just a nice, you know, blouse and slacks or skirt or something like that. So I think, you know, it could be when it’s just sort of a guide, it’s much more general and wide-ranging. When you say a uniform, you think of it as this is the specific blazer you’re going to wear, and these are the specific pants you’re going to wear, like a flight attendant. You know, they’re given sort of, you know, different categories. You know, the women are given sweaters and skirts, and there’s also pants that they can wear, so there’s sort of a few variations of the uniform, but it is a uniform that’s mandated by the employer. I hope that is answering.
– You know, well, and that brings up the point, so if it’s mandated by the employer, does the employer have to pay for it?
– Some employers pay for it. Some employers pay for one, one of them-
– Ah, okay.
– and one outfit, and then the employee buys the rest. I’ve seen many different. You know, larger employers are able to provide more. Some just provide one or two. Some provide for cleaning the uniform, dry cleaning the uniform, or laundering the uniform. I’ve seen so many different ways that goes down that I don’t know that there’s like a clear-cut rule about it.
– But, and in that case, it would be, you have to buy that, those particular clothes, and they would give you the resource to get those clothes. They might have logos on them, or in the case of flight attendants, you know, there are obviously certain ones there. So that, to me, is kind of also the line where you have to buy these clothes, as opposed to you have to dress in this manner, right?
– Exactly. Yes, agreed.
– Okay, okay. So I had a call from a client a few years ago. It was a caterer, and they were a medium to high-end caterer. And the owner and his principal were having this discussion. I’m going to call it a discussion. It might’ve been an argument, but having a discussion, and they said, “We need to call Alan to break this tie.” So one of them wanted the wait staff to wear a black shirt with their logo on it and jeans, and the other one said black shirt with logo, black pants, and that was the argument. It was all about the pants. And they contacted me, and they said, “What do you think?” I said, “No jeans. You’re a medium to high-end caterer, and guests coming to this event and this couple who’s paying a lot for this wedding should not be seeing your people in jeans unless you’re doing a barbecue, you’re doing something where jeans would be what the guests are going to be wearing. That would make more sense.” And I heard this sigh of relief from one of them and kind of a urph, you know, from the other one ’cause they didn’t agree with it. And what got me was, well, what does jeans mean these days, right? I mean, gosh, light jeans, dark jeans, black jeans, jeans with holes in them. Let’s talk about jeans with holes in them. If, you know, jeans are acceptable, are holes acceptable?
– So jeans with holes in them could be really, really expensive. It could cost you like $500 for a pair of jeans with holes in them, but they’re still jeans with holes in them regardless of how much they cost, so and they look a certain way. They’re very casual. Maybe they’re kind of cool, but if you’re not going for that vibe, I don’t think they belong. I mean, if I was a high-end caterer, and the guests were going to be all dressed up in their fancy attire, even though the jeans may have cost a ridiculous amount of money-
– [Alan] Right.
– they don’t belong, and the catering company has the right to say, “It doesn’t matter how much you spent for them. They just look too casual. I want the black pants. It’s classier, it’s more high-end,” yeah.
– And you could say no black jeans. You could just say black slacks, but no jeans, right? That there’s a thing there.
– Yeah, black jeans are still jeans.
– Right.
– They’re just jeans that are black.
– And I’ve seen discussions online. I saw one recently where someone was complaining about a provider who was at the wedding. So, you know, there are certain people that provide services that are not seen, right? The kitchen staff is usually not seen, although they do have dress codes in the kitchen, right? They’re going to wear their whites and their certain pants and things. People do have their choice of patterned pants and things a lot of time in the kitchen, but if you’re supposed to wear your whites with your name on it, you’re wearing your whites with your name on it. But it was about one particular supplier who was complaining about another one who was there, and they felt they were underdressed for this. So now, this is probably a solopreneur. This person could’ve been a solopreneur. And I’m just going to say it was a videographer, right? And this photographer or a DJ or whoever it was that mentioned this noticed that, like, they seem underdressed for the occasion, right? Now, again, they’re not a guest, but, you know, could a couple say to their person, “I want you to dress a certain way,” right, is that?
– Yeah, absolutely.
– Okay.
– I mean, at a black tie wedding, you know, even though the videographer’s going to be behind a camera, I mean, you kind of want ’em blending in with the rest of everybody’s, you know, the guys are wearing tuxedos, the women are wearing…
– [Alan] Right.
– Yeah.
– Well, and a lot of times, I’ll see the photographers and videographers wearing black pants, black top, but so they can move, right?
– Right.
– They can still move around. My niece got married last November. There were three photographers there, and they were all wearing, you know, black pants, black tops ’cause, you know, they have to run around, they have to move, but they weren’t dressed up. This was a black tie wedding, by the way. But they didn’t seem dressed down. I think what stood out about this one is it could’ve been that they were wearing a T-shirt that looked like a T-shirt or looked old, ’cause like you said, you could buy a $500 T-shirt, right? It’s still a T-shirt, but does it look like that or does it look old, faded, torn, you know, whatever those things are that made them stand out. Like “Sesame Street,” you know? “One of these things is not like the others.”
– Right, I mean, if they’re standing out sort of in a negative way, I think it’s the wrong way to go. Like, maybe, you know, they’re not going to wear a tuxedo ’cause they can’t really move around, but a button down black shirt is much better than a black T-shirt.
– Right, and there was a time, I remember when I started in the industry, photographers were almost always in a black suit, sometimes in a tuxedo if it was, and maybe you have to get one with a little more room in it or something, but-
– [Davida] Yeah.
– to do that. And men and women, I’d see, you know, female photographers that were wearing black suits, right? That was because they were dressing up for it. All right, so let’s cross into another area here. Religious attire, hijabs, yarmulkes, turbans, things like that. At what point does the employer have any control over that?
– So the employer has complete, has no control, I should say, if the employee holds a sincerely held religious belief and is required to wear that attire that you just listed as part of their religious beliefs.
– Okay.
– So the yarmulke, the hijab, all those, you know, religious garb.
– Could I ask a Muslim woman to wear a black hijab as opposed to, I’m not saying don’t wear a hijab, but if the dress code is we wear black, could I say, you know, “Wear a black hijab?”
– I mean, I guess I would say if black is the color that you want the rest of the, if we’re talking about a wedding, that you’re asking every other service provider to wear, otherwise it seems like you might be singling that person out. I’d want to know more about why that request-
– Well, so let’s say black is the, air quotes, uniform, so we’re asking all of our team to wear a black top, black slacks or a black skirt or, you know, again, ’cause if they’re going to be covered from head to toe, totally understood. Long black sleeves. You have a choice of that professional look. Is it appropriate, or is it acceptable to say, again, “We love that you respect your religion, and we respect your religion. We’re wearing black. You know, would you wear a black hijab?” Is that something we could ask? Certainly, we can ask it. Can we mandate it if we’re mandating the rest of the black?
– Yeah, I mean, I don’t see why you couldn’t.
– Okay.
– As long as you’re not just picking on one. It’s all about equality, right?
– Right, right.
– So any of the requests, as long as they’re equal-
– Right.
– I would think it’s fine. And I don’t see why unless black is a problematic color for that religion, right?
– Right, and that’s what I was going to get into because with turbans, the colors do mean something, right?
– Right. You can tell by the turban which particular religion or a sect that they belong to, so that would be, again, I would understand that would be a problem, and I could never imagine asking someone to wear a different colored turban because it does now take away the whole significance of that.
– Right.
– Okay, all right. So I just wanted to bring that out ’cause I kind of knew the answer, but I was just hoping, you know, that there wasn’t something hidden. Now something we were talking about offline. This was also in this article, visible tattoos. And I had said it, I don’t have any tattoos. I don’t plan on getting any tattoos. It’s just that that’s my personal thing. It appears to me, being a person of a certain age, that there’s a whole lot more ink visible than there was 10, 20 years ago, 30 years ago, 40 years ago, a whole lot more. And again, there were tattoos back then. Seems to be a lot more visible ink these days. What are the, I don’t know, guidelines, rules, laws, when it comes to visible ink?
– So tattoos are not protected as of today. I think some states have introduced bills. You know, it’s considered, you know, freedom of expression, artistic freedom of expression. Actually, New York City might’ve introduced a bill to protect tattoos. But as of now, I’m not aware of any state, but I’m not an authority on that, on all states that protects tattoos. So, you know, I remember somebody that we interviewed many years for a position as a receptionist at our law firm, and she interviewed for the position, and she was all buttoned up and completely covered, and she had a great resume, and we hired her, and she came to work, and she was covered in tattoos, visible ones, and she wore the skimpiest of attire, and we were all completely shocked and a little like, you know, sort of paralyzed at what we should do. She was very lovely, and we liked her very much, and she stayed for a very long time, and we never, you know, said anything, but we could have. You know, we could’ve said, “Please wear, you know, please cover your tattoos,” you know, tell them-
– Well, so skimpy attire, not appropriate for a law firm or your law firm. Not going to say any law firm. For your law firm, not appropriate.
– Right.
– You could ask her to not wear skimpy attire, but that doesn’t mean-
– Correct.
– long sleeves and whatever.
– [Davida] Right.
– But what you’re saying is because it’s not protected, you could say, “We need you to cover those up.”
– Right, we could’ve said, “We need you to cover up.” And if she had said, “Nope, this is me. This is how I want to portray myself,” you know, she would be making a choice, and we would’ve been within our rights to say, “This isn’t working for us,” and to let her go without worrying that we were going to, you know, receive a lawyer’s letter.
– Right, okay, so, interesting, not protected. Definitely freedom of expression. I remember I was getting eyeglasses one time, and the guy was wearing long sleeve, where everybody else was wearing short sleeves, and it was because he was in the process of having a sleeve tattoo done. It wasn’t quite done yet. He was doing that. But his employer did not want it shown because some of their customers, much more conservative. Maybe some older folks or whatever might not be as open to that and could be a distraction. I guess that’s the thing with any clothing, right?
– Right.
– A receptionist who’s dressed inappropriately is a distraction-
– [Davida] Totally.
– from the mission of the business.
– [Davida] Right.
– [Alan] Okay.
– My daughter has a lot of tattoos. She had a job, and the employer asked her to cover them up, so she wore a sweater. You know, in the warmer weather when maybe we would be wearing short sleeves, you know, she wore a nice professional sweater. You know, it’s just what you have to do. They have the right to, they have the right to make those decisions as of right now.
– Right, and I think for people listening, if you’re at all concerned about this with your clients, I think you should ask them. You know, many of our people, you know, have body ink, and, you know, what is the dress? How are your dressing for your wedding? How are your guests dressing for your wedding? You know, how would you like us to be? I know some DJs, that can be anything from a tuxedo down to, you know, shirt and pants depending upon the type of event. I do the same thing. Kind of BC, before COVID, that’s my new BC, is before COVID.
– Before COVID.
– I was almost always in a suit and tie, and that kind of differentiated me from other people because people had been dressing down, and now I find myself more casual where it’s a sport jacket and sometimes jeans, depending upon where I’m going to be, knowing who the audience is. If my audience is going to be suits and ties and, you know, dressed up, I’m going to dress that way. I’m going to match them, but I noticed that most of my audiences were not. There might be a couple of people that will show up that way, but if most of the audience is not, I’m kind of matching them because it just looks like you’re one of us, right?
– [Davida] Right.
– As opposed to different. And I guess that’s kind of the point, right? If people feel comfortable with you, if they’re not noticing the way you’re dressed, then it’s probably good unless your business is style, right?
– [Davida] Right.
– If your business is fashion, then yes. I know there are a lot of speakers who speak on style. Well, you pretty much should be stylish if you’re getting up on stage.
– Right, for sure, right. Yes, I totally agree with what you just said. If you’re blending in and if people aren’t, you know, distracted by you, then you’re doing the right thing. I’ve been suffering with a little bit of a bad back for the past few weeks, and I’ve been wearing, they’re very nice, sneakers when I go into my office. And when someone sees me, for whatever the reason is, I feel the need to apologize for wearing sneakers. I mean, I look perfectly professional head to toe but these nice sneakers. And there was a client in the office that was seeing my partner, and he introduced her to me, and I apologized to her for wearing sneakers and explained that it was because of my back. And she’s like, “Do not say another word. Our vice president is wearing sneakers with her suit. It is a total power move. You look so cool in those sneakers.” And I said, “A power move? I’m never apologizing for wearing sneakers again.”
– Right, and but that was you feeling uncomfortable because your uniform, air quotes, had changed.
– Right, right.
– And the same with me. When I was wearing suits and ties, I would get Rockport DresSports, so they looked like a wing tip, but they kind of had a sneaker inside and a rubber sole ’cause I’m standing on concrete a lot of times, things like that, and now Cole Haan is my best friend.
– [Davida] Right.
– And Cole Haan has just these, like, the top will be this leather wing tip and the bottom will be white, and I never would’ve worn that, and I’ll wear that with a suit. I was going to get black, and I found these kind of speckled, black, gray, whatever. Again, cloth looks like a wing tip, but it’s a Cole Haan, and my back, I have some back issues too, my back is better for it.
– Right, exactly.
– And I can’t tell you how many times somebody has commented in a positive way.
– Right.
– Like, “Hey, cool shoes,” right?
– Right, exactly, so I feel much better. I don’t know if I have the nerve to go to court that way. I think I would wear my sneakers to court and bring my shoes, but it made me feel a lot better when somebody noticed me in a positive way, and I will no longer apologize for wearing sneakers to protect my back.
– Yeah, what I found with a lot of people is no matter your body type, if your clothes fit you well, you look better, right? I’m not tall, and people very often who have not met me in person then meet me after they see me in a video or whatever, they’re surprised that I’m not tall. I’m vertically challenged. And I’ve actually had people say that to me. You know, “I love your stuff. I thought you were taller,” like, really? And more than once, more than once, Davida, that somebody has said that to me. But when you see me just in a picture, you can’t tell because I don’t look like I’m short in this suit because my suit fits me well. It’s not too big, it’s whatever. I have them tailored. You know, and they’re not custom-made either, but they do, they fit me well, and it’s the same thing with the clothing. You know, you’re rocking the sneakers for your back, but it works with your outfit, it works, right?
– Right.
– That’s the whole point. Okay, so just kind of recapping here. So dress codes are perfectly acceptable as long as they are applied equally to everyone in that role, and I think that’s the important part. You can have different requirements.
– Correct.
– So, again, the manager of a business can be different than their frontline people, but all the managers have to be treated equally on that-
– Equally.
– and not anybody different because of their gender identity, not different because of their age, not different because of any of that. However, again, if someone’s religion is that they’re covered from head to toe, they’re covered from head to toe within those guidelines still, right? Still within the guidelines.
– Correct.
– Okay, tattoos and body art. What about piercings?
– Same, not protected. Not right now.
– That would be a little bit harder then.
– Right.
– ‘Cause some are visible, some are not, but that would be harder if somebody comes in with a nose ring or somebody comes in with a, what are those called, gauges. You know, the big, right?
– Right.
– So and you can’t hide that. I don’t know that you can, I don’t think.
– You can hide that, and if that look doesn’t comport with the business you’re running, and that’s a problem for you, then-
– That’s it.
– you know, you can make some decisions about that.
– And I think the whole key here is what’s appropriate for your business. We were joking before that if we go to Trader Joe’s, I think it’s a requirement you have to have tattoos to work at Trader Joe’s ’cause I don’t know if I’ve ever seen somebody there that doesn’t have them, and your Hawaiian shirt ’cause that’s what they do. They have their Hawaiian shirts or their Trader Joe’s T-shirts with the, what is that, a logo sort of?
– And that’s a uniform. I would call that a uniform.
– [Alan] Right.
– [Davida] They all wear them.
– Right, but everybody, their managers, everybody down is dressed that way, and they have their jeans on, and it’s fine, and the body art, again, I expect it when I walk in there. I don’t necessarily expect it when I walk into Nordstrom’s, right? Or I don’t necessarily expect it if I walk into, you know, a place like that. And but again, it’s personal expectation. I guess if I had tattoos and I saw somebody that did, maybe I’d just be comparing now, you know, like, “Hey, who did yours?” and.
– Well, yeah, I mean, it’s a huge topic of conversation. The other thing I’ll add, in New York City, this just went into law like hours ago, now protects what weight and height, so you can’t fire someone or target someone or harass someone because of their height and weight, which I think is, you know, as I said, the law since I first started out, these are brand new categories of protection.
– Right, so the Rockettes can’t require you to be within a certain height range anymore?
– It’s brand new. It’s brand new. If it’s strictly enforced, I would say no, they can’t.
– Okay.
– There’s always exceptions for safety, by the way.
– Right, right.
– You know, if the job requires that you be a certain height or weight to do something very strenuous, then they can make some rules around that because they don’t want an unsafe workplace.
– Right, or if the physical environment is such that your height or weight, too big, too small, whatever it is.
– Right, right.
– Right, yeah. Yeah, then not exactly-
– In all those categories, by the way, the uniforms, the whole thing, like, there’s always going to be an exception for safety concerns, but they need to be real. They can’t just be made up.
– Right, so you may be representing a five-foot-three person who’s going to try to be a Rockette, and so-
– Right, exactly. I feel like we’re manning the phones for next week now that this law has gone into effect.
– Right, and, you know, we understand why they did what they did for their uniformity, and within a certain amount, I guess the shoes could accommodate, right? So within a certain range, your shoe heel could make you taller or shorter, right, to make you all the same ’cause they want a look. But, again, then the question is, because it’s the theater, right? It’s not on the street or whatever, is that a costume? I don’t know. You’re going to have to…
– Well, I mean, they still have to be qualified to do the job, you know, they’re the Rockettes.
– Right, right.
– You know, the synchronicity and whatever it is that they’re all about.
– Right, right, and again, not necessarily an extreme example, but certainly a visible example of something. You know, back in the day, and this was way before my time, probably before your time also, where the flight attendants, right? Certain look, certain height, certain weight, right? Didn’t they weigh them and stuff, like they way-
– Yes, and they were called stewardesses, and they were all women.
– Yeah, that’s right. That’s right.
– Yeah.
– So, yeah, and we are thankfully way past that to where-
– We’re way past that.
– Right, and advertising too. We see in advertising much more diversity now, much more equity now where we see ourselves on TV instead of we just see certain look.
– Right, an image, exactly.
– A certain image there. So I could talk to you forever about this, but we don’t have forever, so thank you so much for joining us. We’re going to have the show notes there. We’ll have, if somebody wants to find out more about you or your social whatever, or if somebody has a legal issue they would like to talk to a lawyer about that is under your purview. And, again, you’re representing employees.
– [Davida] Correct.
– [Alan] Not employers.
– Not employers. The little guy.
– And that’s the whole firm? That’s the firm?
– Yeah. Yes.
– Okay, excellent. Fighting for the little guy, love it. I love it.
– Fighting for the little guy.
– Fighting for the little guy. Well, somebody’s got to do it, right? We love it there. So I’m so glad that Robyn, I don’t know if Robyn’s listening, but Robyn Hatcher is the one that connected us over here. This is the power of my network, folks. I’m a certified speaking professional, and we have a little email group, and I said, “Who does this?” And so Robyn’s like, “I don’t, but I know somebody who does, and she’s the best.” So thank you so much for coming on here. I so appreciate it.
– Thank you. Thank you, Robyn, if you’re listening, thanks, Alan.
I’m Alan Berg. Thanks for listening. If you have any questions about this or if you’d like to suggest other topics for “The Wedding Business Solutions Podcast” please let me know. My email is [email protected]. Look forward to seeing you on the next episode. Thanks.
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