Monday, December 10, 2018

Don’t Be Branded with Discrimination Over Your Body Art Policy

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.

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.

There are several ways for employers to avoid potential litigation related to their personal appearance policies.
  • Employers should educate themselves about the meanings of certain tattoos and body piercings. 
  • Employers should avoid policies that ban all forms of tattoos, piercings, brandings etc. They should take each situation on a case by case basis to determine whether the body art poses a problem for the employer. 
  • Finally, employers should make sure that all policies relating to personal appearance are applied consistently. The quickest way to a valid claim of discrimination is the discriminatory application of a policy.

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.