Employers have the right to establish a dress code or appearance policy as long as there is a business reason, it is consistently applied and it doesn’t discriminate.
Businesses that prohibit body art, tattoos and unconventional body piercing frequently cite the need to reflect a professional image as the reason. Some employers believe body art may be offensive to customers, investors and the public.
Starbucks conducted an online survey of customers to determine if unobtrusive tattoos or more visible body piercings would change their visiting habits. Tattoos had less of a negative impact than piercings. Tattoos would cause 13% to visit less or stop visiting and 13% would visit more. Visible piercings on the other hand would cause 10% to stop visiting, 26% to visit less and only 5% to visit more.
Once tattoos were shocking, a declaration of being part of a sub-culture; today they may be considered mainstream. One study showed the prevalence of tattoos were leveling off with piercings becoming more popular. An study conducted in 2004 found 36% of people ages 18– 29 had tattoos; 24% ages 30-40 and 15% ages 40-50.
The stereotype of people with body art being tough and less-educated may harm the job seekers’ chances. By itself, this does not constitute discrimination. In fact, a number of studies confirm positive correlations between body piercings and risky behaviors, such as unprotected sex, smoking and illegal drug use.
Employers must understand the concept of religious discrimination before publishing a dress code. The Equal Employment Opportunity Commission (EEOC) has a low threshold to establish whether a person is a member of a religion, requiring an accommodation to practice or observe a belief. Employers should not argue this point. If the employee holds a strong moral or ethical belief, consider accommodating.
Hold an interactive conversation with the employee. Determine the religion’s requirements and what the company can do to reasonably accommodate. If the accommodation will cause an undue hardship, the company is not obliged to make the accommodation.
In Cloutier v. CostCo Wholesale Corp, Kimberly Cloutier would only agree to be exempt from the dress code, to expose her eyebrow ring as a member of the Church of Body Modification. CostCo argued it would interfere with the company’s professional image. The court held that employees reflect on employers, especially those who interact with customers. The court sided with CostCo who determined facial piercings aside from earrings detract from the “neat, clean and professional image” that it wants to cultivate. An undue hardship was established because it would affect the employer’s image.
Consistency is key. If a ball cap is permitted, so is a turban. Fear that other employees may feel uncomfortable with someone’s religious expression is hardly an undue hardship.