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Workplace Dress, Grooming Codes May Raise Legal Issues

By Joanne Deschenaux  9/4/2012
 

A June 2012 “Office Pulse” survey of more than 600 U.S. workers by digital media company Captivate found that what white-collar employees consider acceptable and distracting in office attire varies by demographic factors including age, gender and professional status.

Nearly half of white-collar staffers said they’ve seen cleavage in the office, and 45 percent of workers report seeing tattoos. While 67 percent of employees ages 35 to 49 think tattoos are acceptable, 61 percent of those over 50 years old find them distracting.

“Our survey results show that office attire can be a major distraction for some employees,” said Mike DiFranza, president of Captivate Network. “Companies must navigate the shifting definition of what’s acceptable to wear in the workplace to minimize distractions without turning employees off with overly stringent policies.”

More employers are being forced to relax their workplace dress and grooming standards, Tamara Devitt, managing partner at labor law firm Fisher & Phillips in Los Angeles, told SHRM Online. But, on the flip side, she noted, employers must be careful not to end up in hot water if an employee’s tattoo or clothing is offensive to someone else in the office. And workplace dress codes can raise legal issues. So, how should employers handle this?

Establish a Clear Policy

Tattoos and piercings are becoming more prevalent in the workplace, and “employers must consider what their policy will be and how it fits with their culture,” Devitt said.

A dress code policy should be clear and in writing, Devitt continued. Employers may want to ban tattoos and piercings outright, and, although this may be fine for some employers, “a policy that is too prohibitive will keep out employees that employers might otherwise want to hire,” she said.

The best policy for a particular company may depend on the industry, according to David Barron, an attorney with Cozen O’Connor in Houston. “If you are in the restaurant business and the employees wear uniforms, obviously you have more of an interest in” everyone looking a certain way, he said.  It would be more important than in an office setting, he noted.

The more specific the written policy the better, Devitt suggested, but you also want to make sure the employer has some flexibility. It’s hard to come up with a one-size-fits-all policy, she said. You want to reserve some discretion to management and you want to do this in accordance with a company’s need to service customers.

“I’ve seen blanket bans on tattoos and I’ve also seen bans on ‘excessive or inappropriate’ tattoos,” Barron noted. “You don’t want to start talking about numbers of piercings or size of tattoos” but, rather, take more of a “we’ll know it when we see it” approach. You can say “no visible tattoos” or “only small tattoos are acceptable,” he said.   

Walt Disney World, SeaWorld Orlando and Wal-Mart Stores Inc. all have written policies that apply to visible tattoos. Disney does not permit its employees to use bandages to cover their tattoos, but they can use opaque makeup. SeaWorld specifies “non-conservative, large or offensive tattoos” and that tattoos will be evaluated on a case-by-case basis. Wal-Mart specifies that tattoos “that are offensive or distractive are to be covered by clothing or other means.”

Religious Discrimination Issues

Although employers generally have the right to set boundaries and policies on how much body art or how many piercings an employee may display, religious accommodation and discrimination issues may come into play, Barron stressed.

If the tattoo or piercing reflects an employee’s genuine religious belief, the employer must accommodate that belief unless to do so would impose an undue hardship on the employer’s business.

In a case brought against Red Robin Gourmet Burgers Inc, the Equal Employment Opportunity Commission alleged that the hamburger chain refused to offer a server any accommodation for his Kemetic religion, an ancient Egyptian faith, by ordering him to cover up his tattoos, and illegally fired him when he failed to comply. The tattoos, which were less than a quarter-inch wide and encircled the employee’s wrists, were a verse from an Egyptian scripture and were written in a liturgical Egyptian language. The employee’s religious beliefs, he claimed, make it a sin to intentionally conceal the religious inscriptions. Red Robin settled the case for $150,000.

However, a religious discrimination suit against retailer Costco was dismissed. In 2001, Costco revised its dress code to prohibit all facial jewelry, other than earrings. Costco made this change in order to promote what the company considered a professional appearance, court records indicate. A cashier, who had been employed since 1997, had an eyebrow ring, which she refused to remove, saying that she was a member of the Church of Body Modification and that her eyebrow piercing was part of her religion. The court ruled that Costco was justified in terminating the cashier because “her facial jewelry influenced Costco’s public image and, in Costco’s calculation, detracted from its professionalism.” Such a business determination was within Costco’s discretion, the court concluded.

Even after they have a policy in place, “employers need to be careful,” Devitt said. In order to avoid litigation, the policy must be consistently applied. Supervisors must be trained in the policy. “If you are fighting over a religious accommodation issue, and you say ‘We can’t make this accommodation because our servers have to look a certain way,’” you won’t have a strong argument unless the policy is actually enforced, Barron said.

Harassment

Prohibiting provocative dress in the workplace “often ties in with the employer creating a workplace free of harassment,” Devitt noted. Every employer should have a harassment policy in place, which should include a mechanism for making an internal complaint, she advised.

As to tattoos that may be offensive to other employees, like a Confederate flag, for example, “that has to be dealt with the same way an offensive picture, e-mail or poster would be dealt with. If it's offensive, it should not be allowed in the company.”

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

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