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What to Do About Body Art at Work

March 24, 2010

The increasing popularity of body art is providing challenges for employers in every industry and profession.

     Many employers have responded by implementing dress and grooming policies seeking to limit or prohibit employees’ open display of tattoos and piercings while at work. In 2006, for example, San Bernardino County in California began requiring its employees to cover any tattoos and remove visible facial piercings while at work. Since 2008, Los Angeles city firefighters have been required to cover all tattoos while on the job, and for the past five years, the Los Angeles Police Department has had a requirement that all officers cover any visible tattoos.

Protecting employers’ legitimate interests
Although some employers, particularly in traditionally creative fields, may encourage employee displays of body art as a form of self-expression, many others worry that their employees’ visible body piercings and tattoos may be off-putting or even offensive to customers, investors and the public at large.

What is an employer to do? Those with too-stringent grooming and dress code requirements risk driving off talented employees and hurting employee morale. At the same time, an employer, such as a hospital, may have legitimate concerns that an employee’s mode of self-expression will alienate or offend patients or patients’ families. And, as explained below, the body-art issue also raises some potential legal considerations.

Employers have wide latitude under the law to establish dress and grooming policies, but it also makes sense to consider the underlying reasons for appearance requirements before implementing a strict policy. Obviously, not all positions require traditional business dress and not all positions involve interactions with customers or the public. This means that strict grooming and dress policies prohibiting all displays of tattoos and piercings may be unnecessary, and perhaps demoralizing, to a growing segment of employees.

Developing an effective policy
Even employers that permit piercings or tattoos may find it necessary to set some limits. A detailed dress code and grooming policy should clearly spell out what is permitted. For example, if you permit the display of tattoos, you may prohibit the display of sexually graphic, violent or otherwise offensive tattoos, or may require that employees limit the number of visible tattoos.

To ensure employee support and compliance, employers should consider involving workers in the development of dress and grooming policies. Employers should also be prepared to make a business case for any restrictive policy decisions. At minimum, this will help employees understand the business need for the policies. Having had the opportunity to provide input, employees are more likely to support a dress and grooming policy, even one they do not entirely agree with.

Dealing with religious issues
Employers must also consider how to respond if an employee asserts a right to a particular tattoo, jewelry or hairstyle on religious grounds. You cannot treat employees or applicants more or less favorably because of religious beliefs or practices. In fact, you must accommodate employees’ sincerely held religious practices, unless doing so would impose an undue hardship. According to the EEOC, modification of grooming requirements is an accommodation that may be required. But you are not required to accommodate religious beliefs or practices if doing so would impose an undue hardship on legitimate business interests.

The standard for demonstrating an undue hardship is not high, but employers must be prepared to show that they, indeed, considered the request for accommodation, as opposed to simply dismissing it out of hand.

As is so often the case, the most important factor may be proving that you have acted consistently. Employers may not place more restrictions on religious expression than on other forms of expression that have comparable effect on the workplace. Some employers have already learned the hard way that if a ball cap or flamboyant hairstyle does not pose an undue hardship, neither does the wearing of a turban or a headscarf that is based upon sincerely held religious convictions. The key, as always, is consistent and evenhanded treatment of all such requests. This is another situation where supervisory training is critical. Supervisors and managers must be trained to consult with human resources when facing these situations.

Fear that other employees may be upset by or “uncomfortable” with a religious expression is very unlikely to constitute an undue hardship. On the other hand, you can establish an undue hardship by showing that the accommodation diminishes efficiency in other jobs, impairs safety or requires more than ordinary administrative costs.

Finally, no matter how employers deal with these issues, applicable policies should be clearly stated in writing and readily available to all employees.

Like it or not, traditional dress code and appearance standards are being challenged today more than ever. Employers still retain wide latitude, but practical, social and legal factors are requiring more careful consideration of requests that might have been readily (and safely) dismissed several years ago. It is advisable to seek employee input before making major changes to employee appearance standards. Failure to do so could result in unpleasant surprises.

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.