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Jul 06, 2018

Employers May Sometimes Judge a Book By Its Cover

By: Allison Mann

A well-known adage warns that we shouldn’t prejudge worth or value of something by its outward appearance alone. However, when it comes to employees’ tattoos, piercings, or other body art which does not reflect the company’s public image, employers are forced to make a judgment call. Should the employee be required to cover up and how far can the employer force the issue if the employee refuses? Even a well-crafted dress code policy may not fully resolve the question if the employee claims the body art is mandated by a religious or cultural practice.

Employers may generally prohibit visible body art if the policy applies equally to all employees, but allows reasonable accommodations when appropriate. However, the employer’s adverse action must be timely and not be connected to a protected characteristic such as race, gender, religion, national origin, etc. There is very little to no case law from North Dakota on the subject and some courts have even adopted positions contrary to those of other jurisdictions. In spite of these difficulties, the following three cases illustrate how courts weigh employers’ decisions related to body art in the workplace.

Sudden Body Art on Model Employee

The first case comes from Massachusetts, where a woman was hired for a front-end position by a wholesale retailer. After her hire, the employee engaged in various forms of body modification, including facial jewelry and cutting. A couple years after her hire, the employer revised its dress code to prohibit all employees from wearing facial jewelry. A supervisor informed the employee that she would have to remove her facial jewelry while at work, pursuant to the revised dress code. When confronted by her supervisor, the employee cited for the first time that she was a member of the Church of Body Modification (“CBM”) and that her piercings were part of her religious practices.

The supervisor reviewed information the employee supplied from the CBM’s website. The CBM counted 1000 members and used its website as the primary mode for reaching its adherents. The supervisor found nothing on the website stated that members’ body modifications had to be visible or that temporarily removing body modifications would violate a religious tenet. Based on these observations, the supervisor again instructed the employee to remove her facial jewelry while at work. The employee refused, and the following day filed a religious discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”).

When the employee reported for her next shift, she met with the supervisor to discuss her EEOC complaint and her membership in the CBM. The employee suggested that she be allowed to wear a flesh-colored band-aid over her facial jewelry, but the supervisor refused. The employee was told to either remove the piercings or go home. The employee left and chose not to return to work until her EEOC complaint was resolved. At mediation, the employer offered to let the employee return to work wearing either plastic retainers or a band-aid over the facial jewelry. The employee refused and cited that, because of the CBM’s tenets as she interpreted them, she was required to display all her piercings at all times. The only reasonable accommodation she could accept from the employer would be to excuse her from the dress code. The employer refused, arguing that this accommodation would create an undue hardship and interfere with its ability to maintain a professional appearance. The EEOC ultimately concluded that the employer’s actions violated Title VII, as the employee’s refusal to remove jewelry was religiously based and there was no evidence that allowing the employee to continue to wear the jewelry constituted an undue hardship.

The employee then brought suit on the claim to less success. Ultimately, the federal courts concluded that no violation of Title VII occurred because: (1) the employee’s insistence on a blanket exemption would impose an undue hardship on the employer; (2) an undue hardship exists when the accommodation imposes more than a de minimis cost on the employer; and (3) the imposition upon an employer applies to both economic and non-economic costs. The court explained that an employer has a legitimate interest in presenting a workforce to its customers that is, in the employer’s eyes, reasonably professional in appearance. Employees also directly reflect on their employers, especially those employees with regular contact with the employer’s customers. The employer’s dress code furthered these legitimate interests.

A Clear Policy is Insufficient if Not Timely Enforced

Courts have ruled more harshly against employers when their policies are not enforced diligently.

An employee with two small tattoos encircling his wrists began employment as a server at a chain restaurant. In spite of a company policy stating that body piercings and tattoos must not be visible, the employee was allowed to work with his tattoos uncovered for at least six months. When a supervisor finally asked the employee to cover the tattoos, he claimed a religious significance prevented him from intentionally covering the religious tattoos. The supervisor allowed the employee to continue working with the tattoos visible. The following month, the employee attended an orientation for a new restaurant location and was approached by corporate officers about his tattoos. When the employee explained his religious belief, the corporate officers suggested the employee cover them with wrist bands or bracelets. When the employee refused, he was escorted out and subsequently fired. An EEOC investigation found a violation of Title VII and the employee filed federal suit.

The federal district court denied the employer’s motion to dismiss and said that employers must support a claim of undue hardship with proof of actual imposition on coworkers or disruption of the work routine. The court specifically refused to apply the reasoning of the Massachusetts case discussed above because each case merits individual fact-intensive analysis. Here, the court refused to accept the employer’s contention that the tattoos were inconsistent with the company’s public image given the absence of any customer complaints, the relatively small size of the tattoos, and the employer’s failure to enforce its policy for six months after it learned of the employee’s tattoos.

The Takeaway:

Employers might be able to judge a book by its cover and take action against employees in connection to body art, as long as such actions are not connected to a protected characteristic and are timely. The even-handed enforcement of a dress code policy which includes provisions regarding body art can be beneficial. However, each case must be evaluated individually, with consideration to the law in the jurisdiction of the employer, and, when necessary, discussed with a knowledgeable attorney.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.

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I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the July, 2018 Southwest Area Human Resource Association newsletter.