I was recently asked to review a client’s tattoo policy and some proposed modifications. While doing so, it occurred to me that all personal appearance policies have some potential risk for claims of discrimination. That said, it is worth exploring and considering some potential pitfalls to an overly restrictive personal appearance policy including but not limited to tattoos, body piercings, religious garments and other potential forms of “expression.”
Policies that govern personal appearance are typically facially neutral, meaning that they apply the same to everyone regardless of race, gender, age, religion etc. However, just because a policy applies to everyone equally, that does not mean that its application might not have a discriminatory effect on a certain group or groups of people. It is worth remembering that the EEOC issued guidance a few years back with regards to the use of criminal convictions as a blanket reason for refusing to hire an applicant. The EEOC found that such policies, although applied equally to everyone, had a disparate impact or effect on certain minority groups. If we think about it, the same thing could happen with certain aspects of personal appearance policies. In this article, I will be focusing mainly on body art such as tattoos and piercings.
Not surprisingly, cases regarding personal appearance have made their way into courtrooms. In particular, cases involving the wearing of religious tattoos (or piercings for religious purposes) seem popular. One such case actually involved the “Church of Body Modification” (yes, that is a real thing). An employee of Costco who was a member of the Church wanted to wear a facial piercing while working. The employer offered her, in the name of accommodating a religious belief, the accommodation of covering the piercing or wearing a clear insert while working. The employee objected, claiming that doing so violated her religious obligations to display all of her body modifications. The court held that allowing the employee to avoid the requirements of the employer’s dress code entirely was not a reasonable accommodation. So, it is good to know that employers do still have an interest in regulating the image that they project for their customers and consumers. However, courts have also gone the other way on these cases. In a case involving an employee with a small cross tattooed on his wrist, the court held that since the tattoo was very small, it was not unreasonable to allow the employee to wear the tattoo while working. The key here is to know that each case must be considered on its individual merits. While having a railroad spike through your nose may not be acceptable at work, having a cross tattooed on your hand may not present a problem.
Tattoos, Piercings: Should They Be Visible At Work?
In addition to the many permutations of potential discrimination based upon religion, it is also important to note that members of minority groups statistically have more body art than the national average. For example, one study noted that 47% of Hispanics had some type of body art. So it is easy to see how having a rigid policy prohibiting all body art that cannot be covered may have a disparate impact on minorities as well as those who have tattoos or piercings related to their religious beliefs.
If you have any questions regarding your personal appearance policies or you would like to have your personnel policies reviewed, don’t hesitate to contact an Ancel Glink labor and employment attorney.Tattoos and body piercings have become increasingly prevalent in the U.S. — over 20% of adults are now tattooed. This number only will be increasing because 38% of millennials (born from 1981-1992) have tattoos, approximately half of whom have two or more, while 23% of millennials have body piercings.
Body art is increasing as well. This trend may be at odds with the image that an employer wishes to convey to its clients and customers, particularly given the negative stereotypes associated with body art: studies reflect negative biases against individuals with tattoos which include assumptions that they are less intelligent and attractive, and more rebellious. Not surprisingly, 60% of human resources professionals reported that visible tattoos would have a negative impact on an applicant’s chance of being hired, and 74% said the same thing about facial piercings.
Tattoos In The Workplace: What Employers Care About
Other than a few locales prohibiting “personal appearance” discrimination (discussed below), there is no overt protection for employees with body art. However, employers should be wary of inflexible prohibitions on visible body art. This is not just another dress code issue.
Litigation based on disputes over body art has arisen principally in the context of religious discrimination. For instance, in one case, a member of the Church of Body Modification – which, unsurprisingly, considers piercing a religious act – alleged discrimination after her employer, a retailer, required her to either cover a facial piercing or replace it with a clear insert; the court found in the employer’s favor, holding that the proposed accommodations were reasonable given its interest in presenting a “neat, clean and professional image.” Similarly,
. upheld an employer’s requirement that an employee cover an offensive religious tattoo – a “Fiery Cross” in support of the Church of the American Knights of the Ku Klux Klan – even though other employees displayed inoffensive tattoos. 99 F. Supp. 2d 976 (N.D. Ind. 2000).
Law Regarding Tattoos In The Workplace
In such accommodation cases, courts will closely examine the facts on a case-by-case basis. Thus, not all employers have been successful. For instance, in
, the court ruled in favor of the employee; there was no undue hardship in allowing an employee to continue working with a 1/4” religious tattoo on his wrist, given its size and that the employer hadn’t objected to it for six months prior to termination. 2005 WL 2090677 (W.D. Wash. Aug. 29, 2005).
While litigation based on other protected classes is far less common, employers should recognize that body art may relate to other protected classes. There is very real a disparity in who has body art – one study found that roughly 47% of Hispanic and 33% of African-American respondents had body art, both well above the national average. Thus, it is not hard to imagine that rigid policies against body art could disparately impact one or more protected classes.
Stop The Discrimination In The Workplace By Allison S.
Only a few local governments – including Washington, D.C.; Madison, Wisconsin; Santa Cruz, California; and Urbana, Illinois – currently prohibit discrimination based on “personal appearance, ” which would include discrimination for visible body art. Yet, even there, courts have been deferential to employers defending claims of body art discrimination, so long as the employer can proffer a “reasonable business purpose” for the rule – such as to preserve the employer’s “conservative” image – and is flexible in accommodating the body art by permitting the employee to cover it.
First, blanket bans on body art should be avoided; limits on employees showing body art should be [A] based on more than a general aversion to body art (but a business plan to present a “neat, clean and professional image” in customer access jobs has been sufficient to date) and [B] flexible with options to offer reasonable accommodations to employees with visible body art – such as allowing them to cover the art – rather than taking an adverse action.
Second, any policy regarding visible body art should be consistently applied to avoid discrimination claims arising from disparate application, such as in a Massachusetts case where the employer prohibited women, but not men, from displaying tattoos.
Criticism Of Tattoos And Piercings Is Unfair And Unfounded
Finally, decision-makers need to be educated to be sensitive to body art’s significance not only to the wearer (which may reflect a religious symbol or an ethnic symbol) but also to observant co-workers.
, 2013 WL 2635926, at *19 n.35 (S.D. Ala. June 11, 2013)(African-American employee offered evidence of Confederate flag tattoo on white co-worker as one piece of evidence in his unsuccessful attempt to identify a pattern of racial harassment).
Jack London once said “Show me a man with a tattoo and I’ll show you a man with an interesting past.” But that was a hundred years ago. Today, show me an employee with a tattoo and I will show you a manager developing ulcers.
Tattoos In The Workplace Statistics In 2023
The Labor Dish is an employment and labor blog about legal issues important to US employers. The blog is edited by Ben Gipson, Daniel Turinsky, Michael Massiatte, and Sarah Tauman, who are part of the firm’s Labor and Employment practice at DLA Piper.The tattoos that some individuals adorn their bodies can now become subjects of discussion and debates in the workplace. Discrimination against tattoos in the workplace is now hot topics for conversations and exchange of views. There are diversified personal views as to whether these tattoos are neutral, positive and negative presence in places of employment.
Tattoos have been part of interesting and lengthy cultural history and got broad variety of tattoo practices on different origins, culture and objectives. Tattoos have also become a factor that influences employment related decisions. Some employers do not give big deal regarding employees or applicants with tattoos because they are fully aware that there are races that consider tattoos as part of their identity, status and
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