Legal Updates

Ouch! Where Can Employers Draw the Line on Body Art?

Ouch!  Where Can Employers Draw the Line on Body Art?

“Body art” – tattoos, body piercings and other forms of body modification – has increased in popularity, and in direct response, so have policies governing employee dress codes and appearance.  Generally, these policies are designed to prohibit or place restrictions on such “body art.”  Unfortunately, while an employer may impose certain restrictions, it must do so in a reasonable, non-discriminatory manner that fits the needs of its business.

Legal Challenges

Legal challenges to dress code policies are on the rise based on religious and gender discrimination.

Tattoos as Religious Expression

For example, a restaurant chain, with restaurants throughout the United States, recently paid $150,000 to settle the religious discrimination claim of a food server who was fired for refusing to cover thick tattoos circling both wrists, as required by the restaurant’s uniform/appearance policy, which prohibited employees from having visible tattoos.   Specifically, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a religious discrimination claim against the restaurant chain, claiming that the restaurant chain had failed to accommodate the religious needs of the employee, prior to illegally firing him.  As part of his religion, the employee went through a rite of passage where he received religious inscriptions in the form of tattoos; his religious beliefs made it a sin to intentionally conceal the inscriptions.

Despite the restaurant’s dress code, the employee worked for the restaurant chain for six months without a complaint about these tattoos from customers, coworkers or his immediate supervisors.  Thereafter, a new supervisor took exception to the tattoos.  Despite the employee’s multiple conversations with management, and “lengthy explanations” about his faith, the restaurant chain refused to accommodate the employee’s request to display his tattoos because allowing exceptions to its dress would undermine its “wholesome image.”  In addition to paying $150,000 in damages, the restaurant chain agreed to make substantial policy and procedural changes to ensure that management understands its obligations to accommodate employees’ religious beliefs.

Body Piercings as Religious Expression

In Massachusetts, a member of the Church of Body Modification sued her employer, Costco, Inc. under Title VII and Massachusetts’ anti-discrimination law, claiming that she was terminated when she (1) refused to remove her facial piercings based upon religious grounds, and (2) declined to accept any accommodation short of an outright exemption to Costco’s dress code.  Specifically, the employee claimed that her facial piercings were required by her religion.  While Costco ultimately agreed to let the employee continue to wear her piercings in the workplace as long as she covered them with bandaids, the employee rejected this accommodation.  The United States District Court for the District of Massachusetts found that the employee’s religion did not require her to display her facial piercings at all times, and that Costco’s proposed accommodation was reasonable because “Costco has a legitimate interest in presenting a workforce to its customers that is, at least in Costco’s eyes, reasonably professional in appearance.”  On appeal, the United States Court of Appeals for the First Circuit (which encompasses Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) affirmed the decision in favor of Costco because the employee had made it clear that she would accept nothing short of being allowed to wear her facial piercings while at work, and that this would cause an undue hardship to Costco.

Mascara and Lipstick Requirements Are Not Sex Discrimination

The United States Court of Appeals for the Ninth Circuit (which encompasses Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) recently decided that a “good-grooming” rule issued by Harrah’s Casino to its employees, which required female bartenders to wear makeup, including foundation, blush, lipstick and mascara, did not violate Title VII’s prohibition on sex discrimination.  The employee, a bartender, had worked at Harrah’s for twenty years and had not regularly worn makeup.  In 2000, Harrah’s implemented a “Beverage Department Image Transformation,” which imposed specific appearance standards on each of its employees.  All beverage servers were required to be “well groomed, appealing to the eye [and to] be firm and body toned.”  Female beverage servers were also required to wear stockings and colored nail polish, and wear their hair “teased, curled, or styled.”  The court ruled that employers are permitted to adopt different appearance standards based on sex as long as the rules do not create unequal burdens for men and women.  Specifically, the court found that the female plaintiff failed to show that a makeup requirement for women imposed a burden in excess of that associated with normal good-grooming standards required for men.

Dreadlocks as Religious Expression

The New York Attorney General recently settled religious discrimination claims  with Federal Express Corporation on the basis of Federal Express’ dress policy, which forbade employees with customer contact from wearing dreadlocks.  Several employees offered to wear their dreadlocks under a hat or otherwise in a neat and business-like fashion.  Federal Express, however, refused this accommodation, demanding that the employees cut off their dreadlocks or lose their jobs.  After being fired for refusing to cut off their dreadlocks, several employees complained to the New York Attorney General that they were terminated for wearing their hair in dreadlocks as required by their religious observance.  As part of the settlement, Federal Express also agreed to make changes to its personal appearance policy, educate managers about requests for religious accommodation, and report to the Attorney General’s office about its handling of requests for accommodation.

Avoiding “Body Art” Discrimination Claims

In general, discrimination claims directed at a particular employer’s dress code will focus on gender and/or religious discrimination.  In this regard, however, whether the dress code violates an employee’s sincerely held religious belief will present employers with more difficult challenges than discrimination claims based on gender, race or some other protected characteristic.  When an employee asserts that compliance with an employer’s dress code is inconsistent with his sincerely held religious convictions, we recommend that the employer:

• Initiate a dialogue with the employee;

• Assess the need for possible accommodations, even when faced with unfamiliar religious and/or cultural beliefs;

• Determine whether a solution can be fashioned that fairly balances the employer’s interest in presenting a professional-looking workforce with the employee’s interest in abiding by a sincerely held religious belief; and

• Implement an accommodation if it is something the employer can do without an undue hardship to the employer’s business.

Practical Tips in Creating and Implementing a Dress Code:

In addition, in creating and implementing a dress code, we recommend that employers:

• Draft a dress code that makes sense for the particular business, i.e., a policy that is grounded in safety, efficiency, discipline or other legitimate business concerns;

• Communicate the dress code to all employees;

• Enforce the dress code in a consistent, uniform manner;

• Make a reasonable accommodation when a situation warrants it, e.g., when dictated by an employee’s sincerely held religious beliefs, unless to do so would impose an undue hardship on the employer;

• Train supervisors and managers about the potential for employment discrimination claims arising out of dress code policies;

• Consult with counsel in drafting a dress code and designing training, and before applying disciplinary action or terminating an employee’s employment.

Conclusion

Generally, a dress code that prohibits all employees from coming to work with body piercings and visible tattoos of any kind would likely be permissible, assuming it is applied equally to all employees.  However, such policies can be illegal, even if they are not applied in a discriminatory manner.  For example, such policies may be illegal if they prohibit displaying tattoos or body piercings at work when such display is required by a sincerely held religious belief.   Similarly, a policy could be illegal if it selectively targeted specific body piercings and tattoos in vogue among any particular racial, ethnic or otherwise protected group.  Accordingly, as discussed above, employers should exercise care when implementing or enforcing a dress code policy.