Court rulings set guidelines for body art in the workplace

According to 2003 online Harris Poll, 25-to-29 year olds have the highest incidence of tattoos among all U.S. adults. This fact, coupled with the reality that legal challenges to employer-imposed dress codes and other appearance policies that prohibit various forms of “body art” are on the rise, makes it important for your company to review its policies and enforcement practices to ensure compliance with state and federal law.

Recent court decisions and an Equal Employment Opportunity Commission settlement with Red Robin Gourmet Burgers demonstrate why employers must be mindful of the potential for religious and gender discrimination claims as well as other legal challenges related to employer attempts to enforce tattoo and body art work rules.

Last year, Costco Wholesaler was sued for religious discrimination after it discharged an employee for non-compliance with its policy prohibiting facial jewelry. The employee was a member of the Church of Body Modification and maintained that wearing facial jewelry was a practice required by her religion.

While Costco ultimately agreed to let the employee continue to wear her piercings while at work as long as she used a clear plastic spacer or covered them with Band-Aids, this accommodation was rejected by the employee. The U.S. District Court in 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, stating that “the temporary covering of plaintiff’s facial piercing during work hours impinges upon plaintiff’s religious scruples no more than the wearing of a blouse which covers plaintiff’s tattoos.”

The court also found that “Costco has a legitimate interest in presenting a workforce to its customers that is, at least in Costco’s eyes, reasonably professional in appearance.”

Important lessons

But the EEOC’s lawsuit against Red Robin Gourmet Burgers Inc. and the terms of the settlement in that case, further demonstrate the risks to employers in this area.

Red Robin, a national restaurant chain, recently agreed to pay its former employee $150,000 and to make substantial policy and procedural changes in an agreement with the EEOC to settle a religious discrimination suit. The crux of the lawsuit was that Red Robin refused to make an exception to its no-visible-body-art policy as an accommodation for the employee’s Kemetic religion (an ancient Egyptian faith).

As part of his religion, the employee went through a rite of passage in which he received religious inscriptions in the form of tattoos. The employee’s religious beliefs made it a sin to intentionally conceal those inscriptions.

The employee had the tattoos when he was hired at Red Robin and had not taken any actions to conceal them. He worked at Red Robin for approximately six months, without complaints from customers, co-workers or supervisors, even though Red Robin had a dress code that prohibited employees from having visible tattoos. It was not until a new manager saw the tattoos that the employee was fired for not covering them.

Red Robin refused to provide alternatives and maintained that allowing exceptions to its dress code would undermine its “wholesome image.”

Prior to settling the case, the U.S. District Court for the Western District of Washington rejected Red Robin’s undue hardship defense, holding that it was required to support its undue-hardship claim with more than “hypothetical hardships based on unproven assumptions.”

Employers should take away some important lessons from these recent developments:

• Employers must be prepared to assess the need for possible accommodations, and must ensure that those managers and supervisors making the daily decisions concerning enforcement of appearance policies are aware of any policies, properly trained in enforcement procedure and aware of the potential for employment discrimination claims in connection with the enforcement of those policies.

• Employers must be prepared to demonstrate undue hardship if its appearance policy is not enforced without exception or that an accommodation to its appearance policy requested by one of its workers would result in such a hardship.

Laurel Van Buskirk, who practices labor and employment law at Gallagher Callahan & Gartrell P.A., Concord, is a member of the National Human Resources Association’s New Hampshire affiliate and serves on its programs committee.