Tattoo, body piercing rules can lead to discrimination claims

The prevalence of visible tattoos, body piercings and other forms of body modification have caused some companies to adopt policies that either prohibit or place restrictions on visible tattoos, body piercings and other body art.

The rationale behind such policies is often a desire to have employees maintain a professional and business-like appearance.

Employees, however, typically find these policies invasive of their personal lives and an unwanted dictation of style. In some instances, enforcement of work rules regarding tattoos and piercings have resulted in claims of employment discrimination.

Dress codes and other appearance requirements, including policies that forbid tattoos, body piercings and other forms of body modification, or mandate that they are covered in the workplace (“body art work rules”), as a general rule, are not on their face discriminatory. However, like all general rules, there are exceptions.

Legal challenges to “body art work rules” are on the rise, and to date these challenges have been in the form of employment discrimination claims, on the basis of religion and gender. Employers need to be on the lookout for these claims and other potential hostile environment, age, disability or race/national origin discrimination claims in connection with management attempts to enforce body art work rules.

Earlier this year, Costco Wholesalers was sued for religious discrimination when it sought compliance with its policy prohibiting facial jewelry and discharged a cashier who refused to remove her facial piercings after being asked to do so by management.

According to the policy, “appearance and perception play a key role in member service. Our goal is to be dressed professionally at all times … No visible facial or tongue jewelry (earrings permitted).”

When Costco asked the employee to remove her facial jewelry, she cited her religion as the basis for her refusal. The employee, who was a member of the Church of Body Modification (CBM), maintained that wearing facial jewelry was a practice required by her religion. In an effort to comply with its obligations to provide religious accommodation, Costco agreed to permit the employee to leave her piercings in if she covered them with a band aid while at work or replaced the jewelry with clear plastic spacers.

These proposed accommodations were rejected by the employee, who insisted that she be exempted from the dress code because she claimed her religion required her to display her facial jewelry at all times.

The U.S. District Court in Massachusetts found in Cloutier v. Costco the employee’s religious discrimination claim invalid. For the purposes of its decision, the court found that CBM was a bona fide religion, and accepted the sincerity of the plaintiff’s religious beliefs, however, it found that CBM did not require the display of facial piercings at all times.

The court further found that “the temporary covering of plaintiff’s facial piercings during work hours impinges on plaintiff’s religious scruples no more than the wearing of a blouse which covers plaintiff’s tattoos” and that Costco had a legitimate interest in presenting a work force to its customers that is in its eyes reasonably professional in appearance.

Thus, the court concluded that Costco had fully satisfied its legal obligations to provide a religious accommodation and that the employee’s claims were not actionable.

Interested employers should watch for a decision from the U.S. District Court in Seattle in EEOC v. Red Robin Gourmet Burgers.
At issue in this case are allegations that the employer refused to accommodate and then wrongfully discharged a food server after he refused to cover his tattoos. The employee was a practicing Kemetic (an ancient Egyptian religion) and claimed that his tattoos were of religious significance and that covering them would be sacrilegious.

Employers also are cautioned about gender-based enforcement of body art policies. In Hub Folding Box Co. Inc. v. MCAD, the Massachusetts Appeals Court found that the employer engaged in unlawful discrimination on the basis of gender when it required that a female employee cover a heart tattoo she had on her arm, but did not similarly require a male salesman to cover the U.S. Navy tattoo on his forearm.

The court found the manager’s explanation of his action was based on outdated gender stereotyping.

Companies also must be prepared to respond to complaints from employees that certain body art images are offensive and may contribute to a hostile work environment. In Swartzentruber v. Gunite Corp., employees reported that a co-worker’s tattoo of a hooded figure standing in front of a burning cross was racially offensive. The tattooed employee objected to the employer’s request that he keep the tattoo covered by his shirt when at work. He later filed suit claiming that the employer’s requirement that he do so was unlawful religious discrimination because he was a member of the American Knights of the Ku Klux Klan.

The U.S. District Court for the Northern District of Indiana disagreed. The employer’s request that the tattoo be covered while at work was upheld, the court noted “[The employer] demanded that [the employee] cover his tattoo because it violated [the employer’s] racial harassment policy and offended other employees. [The employer] accommodated his tattoo depiction of his religious belief that many would view as a racist and violent symbol by allowing him to work with the tattoo covered; Title VII doesn’t require more.”

Employers should be prepared, even when confronted with peculiar religious beliefs or practices and/or other challenges to enforcement of its body art policies, to consider whether its application is, or could be viewed as, discriminatory and whether the circumstances obligate the company to reasonably accommodate the religious or cultural observances and practices of an employee. Be sure that managers and supervisors are educated about the potential for employment discrimination claims arising out of the enforcement of body art polices and the possibility that reasonable accommodations.

Consideration also should be given to the necessity of a ban or other limitations on body art at your company and whether its benefits are outweighed by the risk of a potential claim of unlawful discrimination and/or the possible loss of otherwise valued employees who have body art that violates the company’s dress code.

Andrea Johnstone, co-author of “Labor and Employment Law in New Hampshire,” is a shareholder-director at the Concord law firm of Gallagher, Callahan & Gartrell. Laurel Van Buskirk is an associate at the firm.

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