Tattoos, Body Art and Too-Casual Outfits in the Corporate World

While an individual is free to express himself or herself in any way that is desired, as making the skin a canvas for great art, as my lovely granddaughter, Jessica, would say, an employer is similarly free to not hire or discharge the canvas. At a recent symposium, John Phillips, Jr., an attorney, noted, "Everyone wants work to be like a day at the beach... unfortunately, more and more employees dress like it really is!".

As dress standards become less rigid, viewpoints on corporate dress codes have mellowed. Many employers mistakenly believe that discrimination laws restrict the right to determine appropriate workplace dress. In fact, an employee has considerable discretion in what employees may wear to work. Generally, a carefully drafted dress code that is applied consistently should not violate discrimination laws. However, this fact will not stop employees from questioning the policy. This article examines common legal challenges to dress codes and suggests ways problems may be avoided.

Often an employee will complain that a dress code "violates my rights." Some employees will even go so far as to allege discrimination on the basis of sex, religion, or race under Title VII of the Civil Rights Act. However, if a dress code is based on business needs and applied uniformly, it generally will not violate an employee's civil rights. As will be stressed throughout this article, the two conditions precedent are the policy is based on business needs and, second, that the policy is enforced and applied uniformly and universally.

Dress Codes as sex discrimination

Sex discrimination claims typically are not successful unless the dress policy has no basis in social customs, differentiates significantly between men and women, or imposes a greater burden on women. Thus, a policy that requires female managers to wear uniforms while male managers are allowed to wear "professional dress" may be discriminatory. However, dress requirements that reflect current social norms generally are upheld, even when they affect only one sex. For example, in a 1998 decision by the Eleventh Circuit Court of Appeals in Harper v. Blockbuster Entertainment Corp., the court upheld an employer's policy that required only male employees to cut their long hair. As I noted in a previous article, moreover, some interesting case law has arisen regarding the imposition of "dress codes" which often are more limiting and exhaustive with regard to women as to men. In a recent case involving Harrah's casino, the United States Court of Appeals for the Ninth Circuit approved a dress code that directed men to be "well and neatly groomed", their nails to be clean and clipped and present a generally clean appearance. Women, on the other hand, had to "tease" their hair, wear nail polish, and use make-up (face powder, blush and mascara and lipstick). One female employee, who did not wear make up when off duty refused to wear it while working, was discharged and the firing was upheld. This case may be reversed later on. The rules are strange and not always consistent. In California, for example, employers cannot implement a dress code that does not allow women to wear pants in the workplace. There are always exceptions, but if the policy is consistently applied, it will likely pass muster.

Race discrimination?

Race discrimination claims can be even more difficult to prove since the employee must show that the employer's dress code has a disparate impact on a protected class of employees. One limited area where race claims have had some success is in challenges to "no beard" policies. A few courts have determined that a policy that requires all male employees to be clean-shaven may discriminate if it does not accommodate individuals with pseudofolliculitis barbae (PFB), a skin condition aggravated by shaving that occurs almost exclusively among African-American males.

No-beard rules also may violate disability discrimination laws. A few courts have ruled that PFB is a disabling condition and thus requires reasonable accommodation under state disability laws and the federal Rehabilitation Act (which prohibits federal contractors from discriminating in employment based on disability). This is not a substantial area of concern. On the other hand. . .

Religious discrimination?

Employees have had more success claiming dress codes violate religious discrimination laws. These claims are likely if an employer is unwilling to allow an employee's religious dress or appearance. For example, a policy may be discriminatory if it does not accommodate an employee's religious need to cover his or her head or wear a beard. However, if an employer can show that the accommodation would be an undue hardship, such as if the employee's dress created a safety concern, it probably does not have to allow the exception to its policy. The best advice in this situation is to tread very carefully.

Tattoos and piercing.

Many employees also mistakenly believe that they have a right to show tattoos and body piercing in the workplace. While tattoos and piercing may be examples of employee self-expression, they generally are not recognized as indications of religious or racial expression and, therefore, are not protected under federal discrimination laws. Accordingly, as with most personal appearance and grooming standards, an employer has wide latitude to set policy regarding tattoos and body piercing.

Whether or not visible tattoos and piercing should be permitted requires a balancing act between the sensibilities of the customers and the availability of competent employees.

For the most part, an employer is permitted to require employees to cover their tattoos and remove or cover piercing.

In terms of appearance, most courts will say it is within the employer's prerogative to ask that the employees present themselves in a way that is commensurate with the image that the company is trying to present to the outside world," Companies with dress and grooming codes are on the strongest legal grounds when they defend their policies based on legitimate business reasons.

At Starbucks, personnel who serve the $5 lattes can't display any tattoos or wear any piercing jewelry besides small, matched pair earrings. Each ear can't have more than two piercing. Serving upscale coffee demands upscale workers, according to Starbucks, and tattoos don't fit that scheme. "We strive to present a clean, neat, professional appearance that is appropriate for a retailer of gourmet specialty products," said a Starbucks spokesperson in Seattle.

Generally, conservative companies in banking, law and business disapprove of body art or piercing; newer companies, especially in the computer industry, allow more freedom of expression. In years to come, as employers compete for the best and brightest young employees, the former may be forced to relax the dress codes, but, for now, corporate image frowns on these forms of self-expression.

A business owner is able to impose non-discriminatory dress and appearance codes. If self-expression is all-important to a job seeker, the choice is simple: sell-express at your leisure and without a paycheck.