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Bar News - September 7, 2007


New Developments on Tattoos and Body Piercing in the Workplace

By:

 

Statistics show that 25- to 29-year olds have the highest incidence of tattoos of all U.S. adults.1 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 the EEOC 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 (CBM) 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 United States District Court for the District of Massachusetts found that the employee’s religion did not require her to display her facial piercings at all times, and the 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.”

           

On appeal, the First Circuit affirmed the decision in favor of the employer on the grounds that the employee had made it clear she would accept nothing short of being allowed to wear uncovered piercings while at work and that this would be an undue hardship for Costco.  

           

Employers are cautioned, however, not to rest easy following the Costco decision. Legal battles regarding enforcement of personnel policies regulating appearance are expected to continue, focusing on whether the employer offered a reasonable accommodation and/or whether the employer can establish that non-enforcement of its policy will result in an undue hardship. 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 Gourmet Burgers, Inc., 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 Egyption 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.

           

Although the employee claimed he had multiple conversations with Red Robin management regarding his religious beliefs and his need for accommodation, 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 US 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 in the area of employer-imposed appearance policies. Employers must be prepared to assess the need for possible accommodations, even when confronted with unfamiliar religious and/or cultural beliefs or practices. They must ensure that those managers and supervisors making the daily decisions concerning enforcement of appearance policies are aware of any company 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 also be prepared to demonstrate undue hardship if its appearance policy is not enforced without exception and/or that an accommodation to its appearance policy requested by one of its workers would result in an undue hardship.

 

Laurel Van Buskirk practices labor and employment law at Gallagher Callahan & Gartrell, P.C. She is a member of the National Human Resources Association (New Hampshire affiliate) where she serves on its Programs Committee. This article first appeared in the December 2005 issue of the New Hampshire Business Review and is intended to inform readers generally about new developments and to report on current trends.

 

Footnote:  1. A 2003 online Harris Poll conducted by Harris Interactive found that 16 percent of all U.S. adults have at least one tattoo. The age group with the highest incidence of tattoos was the 25-29 year-olds (36 %), followed by 30-39 year olds (28 %).

 

 

 

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