Dear Rita: Our younger employees are increasingly decorated with ink and metal. Most of them conceal their “body art” while at work but in summer it’s become more visible. We don’t care about tattoos and piercing but we don’t want to look at them, and we don’t think our visitors do either. Is it legal for us to ban visible body art? — Artless Old Fogey
We’re not surprised the issue has surfaced in your organization. AÂ recent study found that about one-half of people in their twenties sport body piercings beyond their ears, and one-fourth of Americans between the age of 18 and 50 are tattooed (Journal of the American Academy of Dermatology, 6/06). Visible tattoos and piercingsÂ can be legally regulated, but as you probably know, your employees may chafe at such rules.
The cultural shift towards more body art sends a shout out to organizations that can’t be ignored. If you are seeking to keep body art covered to present a more professional appearance,Â you should consider updating your dress codes. (See link at end of this article to a Model Dress Code.)
There are no federal laws governing employee dress codes. Employers have the right to project the image of their choosing and may implement whatever dress guidelines they feel are appropriate, as long as they do not discriminate on the basis of gender, race, religion, disability, or any other federally protected status. It is the anti-discrimination laws (Title VII of the Civil Rights Act of 1964) that can make it tricky to strike a balance between requiring appropriate dress and respecting employees’ legal rights.
In a nutshell, prohibition of visible tattoos or piercings is legal, unless it collides with religious and gender issues. In such cases there’s a likelihood you can “step into” a discrimination lawsuit. Here is a brief description of such concerns:
Regardless of what is in your dress code, you may be required to make a reasonable accommodation for an employee whose religious beliefs or traditionsÂ include having visible tattoos or piercings.
For example, a food chain hired an employee who, because of his practice of an ancient Egyptian faith, had religious inscriptions tattooed around both of his wrists. During the six months the employee had worked at the company, not a single customer, co-worker or the employee’s immediate supervisor had complained about the tattoos. However, management fired him for violating the dress code . . . which led to an award of $150,000 for the employer’s failure to reasonably accommodate the employee’s religious beliefs.
Likewise, courtsÂ have sanctioned employers for prohibiting yarmulkes, head coverings or religious insignias such as crosses in the office environment. On the other hand, courts have upheld an employer’s right to prohibit religious garb such as long skirts and flowing robes where they present a safety risk, such as on a warehouse floor. A rule requiring men who work in a kitchen to be clean shaven may be allowed, even for those members of religious groups that traditionally do not shave. Because each situation is “fact-intensive,” you should consult a labor law professional before denying an employee an accommodation based on religious beliefs.
Even though gender bias can be a factor in litigation, you can have differentÂ dress codes for men and women. For example, courts have concluded that women may be allowed to pierce their ears but men are not allowed to wear earrings in the same workplace. These findings are basedÂ on a “customary code of grooming” rather than on gender. With hair length, courts have uniformly ruled that different hair standards do not violate Title VII.
Whenever possible, of course, the best practice is to have the same dress requirements for women and men. Employers should regulate flowing hair for everyone when it poses a health concern, such as in a food kitchen. Instead of requiring jacket and tie for men, the handbook could require” professional business attire” for all employees (both men and women).
You should also check your state laws affecting dress code requirements. For example, California has enacted a law prohibiting employers from implementing dress codes that restrict women from wearing pants.
With regard to body art, an employer can impose different standards for different classes of employees, but not for different genders. For example, an employer can ban visible tattoos and piercings for employees who meet face-to-face with customers, as long as the employer applies the dress code equally to all employees in that class, absent religious accommodations. But an employer cannot prohibit visible tattoos on women, while allowing men to show off their body art or allow women to sport body piercings, while precluding men from doing the same, with the exception of pierced ears (go figure).
Does this mean that if you have a receptionist who gets a facial tattoo, you can then fire her? Yes, if you have a clear dress code policy prohibiting visible tattoos for those employees who interface with the public.
In short, an employer has a legitimate business interest in presenting a workforce that is “reasonably professional in appearance” and whose workplace is “safe.” Therefore, an employer can implement grooming and dress policies to protect those interests. We suggest basing dress codes on objective criteria such as workplace safety and professional image, and to include a statement in the personnel handbook reaffirming that the nonprofit will make every effort to accommodate employees’ religious beliefs.
It’s legal and a good idea to establish boundaries with respect to appearance: most employers prohibit unprofessional attire such as torn clothing, flip-flops, cut-off shorts, halter tops, sheer garments, sweat suits, tee-shirts with sayings and visible body art. Employers who do allow American casual dress should be careful not to prohibit forms of ethnic dress, such as traditional African or Indian attire.
Yes, dress in the workplace is evolving. Even us “stodgy attorneys” have segued from suits to “business casual.” Makes oneÂ ponder what amazing body bling is hidden underÂ your co-worker’sÂ business attire.
See also: Model Dress Code for Nonprofits
Pamela Fyfe is an HR attorney at the Nonprofit Insurance Alliance Group, where she advises members on a wide variety of HR issues.