October 2013 Bar Bulletin
 
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October 2013 Bar Bulletin

Tattoos and Piercings:

Managing Employee Appearance and Behavior without Breaking the Law

By R. Brent Ballow

 

According to the EEOC, 79,310 discrimination charges were resolved in fiscal year 2012. What is not noted, however, is that the faces of these claims are changing.

Many recent legislative developments and court decisions show how plaintiffs are using traditional discrimination principles to advance claims of lifestyle discrimination based on physical appearance, body piercings and tattoos, and dress.

The legal issues addressing employees with tattoos and body piercings can be avoided by implementing a well-written, nondiscriminatory company policy. Many companies feel that they need these policies in place in order to protect the public image of the company. The policy should contain a clear statement regarding the company's position on tattoos and piercings. If the company chooses to include rules that prohibit employees from having any visible tattoos and piercings, that can be written into the policy.

The policy will go a long way in achieving an employer's goals regarding appearance issues at work, but an employer must also be aware of recent court decisions addressing these issues. Employers get into legal hot water with their dress codes for one of two reasons; either they have double standards for two groups or they fail to accommodate a legitimate request. The cases show that an employer still may run afoul of employment laws if it fails to consistently apply the policy or fails to recognize challenges to the policy under the traditional discrimination principles.

Perhaps the best example of an attempt to assert a traditional discrimination claim while using physical appearance discrimination as the basis for the claim is the class action litigation brought against Abercrombie & Fitch. The plaintiffs were representatives of African-American, Asian, Latino and female classes, alleging that the "Abercrombie & Fitch look" desired by the national retailer led to discrimination against minorities and women. The lawsuits ultimately were settled for $50 million, plus changes in Abercrombie & Fitch's policies.

Several cases have made it to court that address body piercings and tattoos. The most highly publicized case involving body piercing is the First Circuit's rejection of a Costco employee's desire to be exempted from Costco's ban on body piercings because of her involvement in the Church of Body Modification (CBM).1 The court described the Church of Body Modification as follows:

The CBM was established in 1999 and counts approximately 1,000 members who participate in such practices as piercings, tattooing, branding, cutting, and body manipulation. Among the goals espoused in the CBM's mission statement are for its members to "grow as individuals through body modification and its teachings," to "promote growth in mind, body and spirit," and to be "confident role models in learning, teaching and displaying body modification."2

Rather than addressing the difficult question of whether the CBM is a bona fide religious organization, the court held:


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