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Tattoos and piercings: issues of body modification and the workplace.
Subject:
Employers (Civil rights)
Civil rights (United States)
Civil rights (Texas)
Discount stores
Restaurant industry
Tattooing
Labor law
Employment discrimination
Body piercing
Authors:
Elzweig, Brian
Peeples, Donna K.
Pub Date:
01/01/2011
Publication:
Name: SAM Advanced Management Journal Publisher: Society for the Advancement of Management Audience: Trade Format: Magazine/Journal Subject: Business; Business, general Copyright: COPYRIGHT 2011 Society for the Advancement of Management ISSN: 0036-0805
Issue:
Date: Wntr, 2011 Source Volume: 76 Source Issue: 1
Topic:
Canadian Subject Form: Labour law
Product:
Product Code: 5331200 Discount Stores; 5800000 Restaurants & Food Service; 9101210 Civil Rights NAICS Code: 445299 All Other Specialty Food Stores; 722 Food Services and Drinking Places; 92219 Other Justice, Public Order, and Safety Activities SIC Code: 5331 Variety stores; 3589 Service industry machinery, not elsewhere classified; 5812 Eating places
Organization:
Government Agency: United States. Equal Employment Opportunity Commission Company Name: Costco Wholesale Corp.; Red Robin Gourmet Burgers Inc.; Gunite Corp. Ticker Symbol: COST
Geographic:
Geographic Scope: United States; Texas Geographic Code: 1U7TX Texas
Legal:
Statute: Civil Rights Act of 1964

Accession Number:
258439087
Full Text:
The huge increase in tattoos and body piercings has caused workplace conflicts that, not surprisingly, have landed in the courts. In general, discrimination in employment decisions based on tattoos or piercings is not illegal unless the person with the "modification" is a member of a protected class, particularly a class based on religion. In litigation involving private employers--the focus of this article--employers have been largely successful so far. However, as trends and views change, employers should keep a close eye on decisions involving Title VII of the Civil Rights Act of 1964. The authors offer nine suggestions for employers as they navigate the tricky waters of this particular societal trend.

Introduction

Tattoos and body piercing-described as a piercing anywhere in the body besides the soft spot of the earlobe--has become more popular in recent years. As reported by the Associated Press,

"A generation or two ago ... tattoos--to say nothing of [a] pierced nose--would have placed [one] in the select company of soldiers, sailors, bikers and carnival workers" (Tattoos now mainstream, 2006). However, "[t]attoos are almost ubiquitous these days, with body piercing likely following close behind" (Harkins, 2006). Tattooing and body piercing are becoming so commonplace that tattoo and piercing boutiques are surfacing in malls (Albright, 2009).

This article examines the legal aspects with respect to hiring and employment decisions that are based at least partly on the applicant or employee having a tattoo, body piercing, or other body modification. In general, as discussed later, discrimination in employment decisions based on tattooing and body piercing is not illegal. Exceptions to this general rule come when individuals claim that the tattoo or piercing is part of their being a member of a protected class (primarily, but not solely limited to, based on religion). This article focuses on claims made to private, not public, employers. The legal analysis of protection for public and private employees is similar outside of extra-constitutional protections afforded to public employees. However, public employees have been unsuccessful in these claims when it comes to tattoos and body piercings.

Increase in Tattooing and Body Piercing

Although tattooing is not a new phenomenon, the number of people who have tattoos has increased significantly and continues to rise. Life magazine estimated in 1936 that only 10% of the American population was tattooed in whole or in part (One out of ten Americans is tattooed, 1936). While it is hard to determine the exact percentage of the population with tattoos, data suggest that tattooing is becoming more popular, especially in younger demographics. In addition to tattoos, it appears that a relatively large percentage of younger people have piercings other than on the soft part of the earlobes. A 2006 study conducted by the Pew Research Center compared what they called Generation Next (people born between 1981 and 1988) with Generation X (born between 1966 and 1980) and baby boomers (born between 1946 and 1965). The study found that about 10% of baby boomers got a tattoo at some point in their lives, a statistic consistent with Life magazine's 1936 estimate. However, when comparing Generation X and Generation Next, the rate of tattooing jumped to 40% and 36% respectively. The study found that 6% of baby boomers had a body piercing at some point, for Generation X the rate was 22%, and Generation Next it was 30% (How young people view their lives, futures, and politics, 2007).

A 2006 study published in the Journal of the American Academy of Dermatology of Americans aged 18 to 50 found that the overall rate of tattooing was 24%, with 22% of women and 26% of men having at least one. The study also reported that 14% of respondents, at some time, had a body piercing--21% of women and 8% of men within that age range (Laumann and Derick, 2006). The study also found a positive association between tattoos and a "lack of religious affiliation, extended jail time, previous drinking and recreational drug use" (Laumann and Derick, 2006). Although the data suggest that fewer people in the youngest cohort (born between 1981 and 1988) have a tattoo, Laumann and Derick suggested that this was because this cohort had not had an opportunity to become tattooed. In their 2007 study, they noted that 66% of this cohort either had a tattoo or were considering getting one (Laumann and Derick, 2007).

A Harris Poll survey published in 2008 not only related information on the prevalence of body piercing and tattoos, but also on people's attitudes toward tattoos from tattooed and non-tattooed individuals (Three in ten Americans with a tattoo say having one makes them feel sexier, 2008). The data were then compared to data in a similar 2003 study. The 2008 Harris Poll indicated that 32% of people aged 25 to 29 had a tattoo, 25% of those aged 30 to 39 had tattoos, 12% of those aged 40 to 49, 8% of those aged 50 to 54, and 9% of those aged 65 and over. Again it appears that the percentage of older Americans with tattoos was consistent with the 1936 number, and that people aged 25 to 49 had become tattooed at a much higher rate than previous generations. The poll also found that the youngest age group (18-24) was one of the least likely to have tattoos, but that could be consistent with the view published in the Journal of the American Academy of Dermatology, which is that this age group had not yet had an opportunity to get tattooed. However, this may also be a trend toward less tattooing. In addition, this 2008 poll shows that gay, lesbian, and bisexual individuals tend to have almost twice the likelihood of having a tattoo than the general public.

The 2008 Harris Poll also found that 5% of all adults had a piercing on their body, but not on their face, and 2% of adults had a piercing on their face other than in their ears. However, these data were not segmented by age group or gender, so it is difficult to posit any trends about body piercing.

This poll also showed that the attitudes toward tattoos among those not tattooed were relatively consistent between the 2003 and the 2008 data. For example, when non-tattooed individuals were polled about the rebelliousness of people with tattoos, the response that a tattoo made one more rebellious was 57% in 2003 and 54% in 2008. However when considering whether there is a perception that people with tattoos are more likely to engage in deviant behavior, the attitude of those without tattoos (32% said that people with tattoos were more likely to be deviant) was very different from the attitude of those with tattoos (where only 12% say that tattooed people were more likely to be deviant). Not surprisingly, these data could indicate that as a greater percentage of the population has tattoos (and by inference piercings as well) they will be considered to be more acceptable to the general population. This poll did not segregate between visible and non-visible tattoos.

In the future, this may indicate that employers will be less likely to discriminate on the basis of tattoos because more people with tattoos may be doing the hiring. If current trends continue, these adornments and modifications may, by necessity, become more acceptable in the work place. This is true even if many in upper management discriminate against visible tattoos, since many individuals in those jobs may have non-visible tattoos. Presumably, those who were once pierced, but no longer are, may have similar changes in attitude toward the currently pierced.

Legal Issues

Tattoos and piercings are considered to be mutable (alterable) characteristics; therefore, they do not automatically receive any special legal protection. Outside of any discriminatory intent that would be in violation of Title VII of the Civil Rights Act of 1964 (Title VII) as amended, mutable characteristics are permitted as a means of discrimination (at least this would not be a violation of federal law). Unless another constitutional right is being violated by the employment practice, Title VII made it "unlawful employment practice for an employer ... to discriminate against any individual ... because of such individual's race, religion, sex or national origin" (Civil Rights Act of 1964 [section] 2000). Title VII was enacted as a balance between the "traditional rights of employers to run their companies as they see fit ... against the prohibitions of discrimination" (Bandsuch, 2009). Title VII has no prohibition on company policies that dictate aspects of employee appearance. Therefore, a general company policy that bans or limits tattoos or body piercing in a private company will be upheld, unless it is a violation of a constitutional right of an employee.

This article focuses on private employers versus public employers. Courts have consistently rejected public employees' constitutional claims, the most common of which is that the tattoo or piercing is protected by the First Amendment provisions of freedom of speech or expression. In most cases the courts have held that the tattoo or piercing is not protected speech. In instances where the tattoo or piercing was found to have some First Amendment protected speech, the public employees could not prove there was an "equal protection" violation. The proper physical appearance of the employee outweighed the employee's rights not to be singled out) Other than the extra constitutional protections afforded public employees, "the approach courts take in balancing the rights of public employees' to choose their mutable characteristics with the rights of public employers is substantially similar to the analysis for private employers" (James, 2008).

Private Employers

Most private employers are only subject to the "employment at will" doctrine. In essence, employment decisions can be based on any factor they desire, as long as it does not run contrary to any specific law. The legal cases in which employees have claimed that they were fired because of a tattoo or body piercing focused on allegations that such restrictions violated of Title VII of the Civil Rights Act of 1964 or a similar state statute. The litigation generally concentrated on whether or not a plaintiff was a victim of religious discrimination (Fox, 2009). In those cases, the employer's rationale for the policy must be weighed against the discriminatory outcome of the policy. A simple illustration of this is the 2000 case of Swartzentruber v. Gunite Corporation. In that case, the plaintiff Swartzentruber was hired in 1993 to work at Gunite. Five years after obtaining his employment he came to work with a "tattoo extending from his elbow to his wrist that depicted a burning cross and a hooded man" (Swartzentruber 980). A group of black employees at Gunite complained that the tattoo was a racist symbol and was offensive. A manager from Gunite found it to be offensive to him, as well, and claimed the tattoo could lead to a hostile working environment. Gunite's manager instructed Swartzentruber to keep the tattoo covered at work and said that failure to do so could lead to disciplinary action, including discharge from the company. After receiving complaints that the tattoo was being left uncovered, the manager required supervisors to monitor Swartzentruber's compliance. Swartzentruber sued Gunite claiming, among other things, that the policy constituted religious discrimination. Swartzentruber based his religious discrimination claim on the fact that for several years he claimed to be "a member of the Church of the American Knights of the Ku Klux Klan, a religious organization" (Swartzentruber 979). He claimed that the firey cross was one of the church's sacred symbols and the tattoo contained other sacred symbols as well. He claimed that he was receiving unfair treatment by being required to cover his tattoo, an obligation others at Gunite did not have, and that it was an adverse employment action. In establishing a Title VII case for religious discrimination that court described the normal standards to determine if there was a violation:

Title VII makes it unlawful to discriminate against an individual because of that individual's religion ... and defines "religion" as including "all aspects of religious observance and practice, as well as belief." To establish a prima facie case of religious discrimination, a plaintiff must show that (1) he has a sincere religious belief, observance or practice that conflicts with an employment requirement; (2) he informed his employer of the conflict; and (3) the religious practice was the basis for the adverse employment decision.

...

Once a plaintiff makes a prima facie case, the statute imposes "an affirmative duty on employers to reasonably accommodate the religious observances and practices of its employees, unless the employer can demonstrate that such an accommodation would cause undue hardship to the conduct of its business." The employer need not select the employee's proposal of reasonable accommodation; any reasonable accommodation by the employer is sufficient to comply with the statute (Swartzentruber 978-979).

The Latin phrase, prima facie literally translates "at first sight" (Black's Law Dictionary). A prima facie case is thus defined as "such as will prevail until contradicted and overcome by other evidence" (Ibid.). When a prima facie case is established, it means that the basic elements needed to bring a legal action have been met. The court dismissed the case on summary judgment holding that Swartzentruber could not establish a prima facie case since he put forth no evidence that his religious beliefs were infringed by being forced to cover his tattoos. Summary judgment allows a court to give a "prompt and expeditious disposition of [a] controversy without a trial (Ibid.). The standard to grant summary judgment is "no dispute as to material fact ... or if only question of law is involved" (Ibid.). The court also stated that even if a prima facia case were established, summary judgment would still have been correct, since Gunite had reasonably accommodated Swartzentruber by allowing him to cover his tattoos. Any further requirement would have been considered an undue hardship on Gunite.

A similar case was argued for body piercing. In Cloutier v. Costco, the plaintiff, Cloutier, was an employee of Costco Wholesale Corp. At the time of her hiring, she had multiple earrings but no other facial piercings. During her period of employment, Cloutier "engaged in various forms of body modification including facial piercing and cutting" (Cloutier 128). After Cloutier received her facial piercings, in March of 2001, Costco revised its dress code banning facial piercings. On June 25 of that year, Costco supervisors advised Cloutier that she must remove her piercings while at work. She refused, stating that a few months prior she had joined the Church of Body Modification (CBM) and that her eyebrow piercing was part of her religion. Cloutier showed a Costco manager a Web site about the CBM (the primary way in which the CBM reaches its adherents), which stated that:

[a]mong 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" (Cloutier 129).

While it was stated that Cloutier "interprets the call to be a confident role model as requiring that her piercings be visible at all times and precluding her from removing or covering her facial jewelry" (Cloutier 126), there was nothing on the CBM's site that required the wearing of facial jewelry at all times. After reviewing the site content, the Costco manger insisted that she remove the facial jewelry. When Cloutier refused, she was suspended. Eventually she was terminated for unexcused absences due to her noncompliance with the dress code.

In this case, the appellate court upheld a summary judgment ruling in favor of Costco. During an Equal Employment Opportunity Commission (EEOC) mediation on the matter, Costco offered to let Cloutier return to work with plastic retainers in place of her jewelry or to cover her piercing with a Band-Aid. Interestingly, prior to Cloutier's termination and subsequent mediation, this accommodation was something that Cloutier had suggested. However, after her termination, she claimed that covering the piercing would violate her religion and the only appropriate accommodation would be to allow her to wear her piercings to work. The court held that:

Granting such an exemption would be an undue hardship [on Costco] because it would adversely affect the employer's public image. Costco has made a determination that facial piercings, aside from earrings, detract from the "neat, clean and professional image" that it aims to cultivate. Such a business determination is within its discretion. As another court has explained, "Even assuming that the defendants' justification for the grooming standards amounted to nothing more than an appeal to customer preference ... it is not the law that customer preference is an insufficient justification as a matter of law" (Cloutier 136).

The Swartzentruber and Cloutier cases both deal with situations in which the court did not analyze the validity of the religion and the sincerity of that plaintiff's religious beliefs. Without such an analysis, courts find it easy to rule that employers (defendants) have made reasonable accommodations and the further accommodation would create undue hardship on an employer. However, courts that have conducted this type of analysis seem to take a harder position on what constitutes reasonable accommodation. In EEOC v. Red Robin (2005), the plaintiff Rangel was a practitioner of Kemeticism, a religion that has roots in ancient Egypt. Rangel, during a religious ceremony after undergoing a rite of passage, obtained two tattoos, encircling his wrists, that were less than a quarter of an inch wide. The tattoos were written in Coptic and translated to read "My Father Ra is Lord. I am the son who exists of his father; I am the father who exists of his son" (EEOC v. Red Robin 3). The tattoos allegedly represent his servitude to Ra. Rangel believed that covering his tattoos intentionally would be a sin, but covering them unintentionally would not be. Rangel was hired by Red Robin Gourmet Burgers, Inc. in December of 2001. When he was hired he signed Red Robin's uniform/appearance policy which provided in relevant part that "body piercings and tattoos must not be visible" (EEOC v. Red Robin 4). He was asked to cover his tattoos for the first time in May of 2002. He explained the religious significance of his tattoos and his assistant manager allowed him to continue working with his tattoos, exposed. A month later, however, at an orientation for a new store, Red Robin's general manager and senior regional operations manager told him to cover his tattoos with wristbands. When he repeatedly refused to do so, he was terminated. The EEOC decided to help Rangel pursue a case of religious discrimination against Red Robin. In determining whether to grant summary judgment, the court found that it was undisputed that "Rangel notified Red Robin of the conflict between his religious beliefs and its dress code policy and that Red Robin discharged based on the violation of the policy" (EEOC v. Red Robin 9). This established the second and third prongs of a prima facie case and the court concentrated on the first prong: whether or not Rangel had a sincere religious belief.

Red Robin argued that "Rangel's tattoos lack historical and textual support" (EEOC v. Red Robin 8), and that his refusal to cover them was arbitrary since they were covered during religious ceremonies, when he was cold, when he wore long sleeves, and when he wore costumes. Rangel argued that the occasional covering was incidental not intentional coverage of the tattoos and only intentionally covering them was a sin. The court found that there was evidence, through repeated statements and actions of the plaintiff, that refusing to cover the tattoos was more than a mere personal preference, but was part of his deeply held religious beliefs.

Since a prima facie case was established, the court then looked to whether there was reasonable accommodation by Red Robin. The only accommodation that was requested was exemption from the policy. The court refused to adopt the rationale of the Cloutier case, and instead stated that a factual determination must be made in each case to decide what is reasonable, which is a standard used in the Ninth Circuit Court of Appeals. The court stated that there was no evidence of actual customer complaints about Rangel's tattoos. Due to their small size and the fact that they were written in Coptic, it "was suggest[ed] few customers ... noticed or understood Rangel's tattoos, unlike the employer in Cloutier whose facial piercings were imminently visible" (EEOC v. Red Robin 18). Perhaps most important, in dismissing Red Robin's claim of undue hardship (supported by a company profile and customer study showing that Red Robin was trying to establish a family-oriented restaurant) the court held that "Red Robin fails to present any evidence that visible tattoos are inconsistent with these goals generally, or that its customers specifically share this perception. Hypothetical hardships based on unproven assumptions typically fail to constitute undue hardship" (EEOC v. Red Robin 18-19). After losing on its motion for summary judgment, Red Robin ended up settling the lawsuit for $150,000 and agreed to make policy and procedural changes to ensure that management properly accommodates religious beliefs (burger chain to pay $150,000 to resolve EEOC religious discrimination suit, 2005).

A similar result was found in EEOC v. Papin. The defendant Hawwah Santiago claimed to practice the Nuwaubian religion. The defendants include Doctor's Associates Inc. (DAI), the owner of Subway restaurants intellectual property rights, and Papin the Subway franchise owner where Santiago worked as well. Santiago requested waiver of Subway's no facial jewelry policy. Santiago claimed that she would not comply with Subway's policy because her nose ring was religious in nature. Papin requested that DAI waive the no facial jewelry policy for Santiago. DAI asked for documentation supporting the religious nature of the nose ring. Santiago supplied a letter from herself and her mother regarding her religion. DAI, unsatisfied with that asked for some religious text or note from a minister to support the waiver. Santiago did not supply any religious text and stated that she did not have a minister. Papin then notified Santiago that the waiver was denied and she had five days to provide some "sort of bona fide documentation regarding the nose ring and its significance to her religion" (EEOC v. Papin 6) or she could not wear her nose ring in the restaurant. Santiago did not present any documentation and refused to remove the nose ring and was, therefore, terminated. Again, on motion for summary judgment, the court found that the second of two prongs of a prima facie case for religious discrimination was met, and concentrated on the first.

The defendants admitted that the sincerity of Santiago's religious beliefs were a question of fact that could not be decided on summary judgment. Instead they argued that they were entitled to summary judgment since reasonable accommodations were offered and Santiago refused. The defendants claim that they offered to allow Santiago to cover the nose ring with a flesh-colored Band-Aid. She refused. The defendants attempted to distinguish this case from the Red Robin case by noting that "Santiago has acknowledged that it is 'not a sin' in her religion to not wear a nose ring" (EEOC v. Papin 18). However Santiago stated that to wear a Band-Aid over her nose ring would be "like abnegating [her] religion" (EEOC v. Papin. 11). The court ruled that this again was a question of fact that could not be ruled out on a motion for summary judgment and would need to be determined on a case-by-case basis. Papin also alleged that he offered to let Santiago leave the store when the DAI inspectors came by. The court rejected this, holding that a proposal could not be an accommodation since it would amount to subterfuge of fraud by the franchisee.

The court then turned to the defendants' claim that accommodating Santiago's claim would lead to undue hardship. They claimed that it was reasonable to require strict, uniform food safety as part of its business models. The court rejected this claim stating:

[The defendant] cannot sincerely argue that they had a strict food safety requirement barring nose rings while at the same time claiming that one of the proposed reasonable accommodations was to allow ... Santiago to wear the nose ring at all times while working in the restaurant but to permit her to leave when the compliance officer came by (EEOC v. Papin slip op., 22).

The court reasoned that Papin only cared if he was out of compliance and that he was not genuinely concerned about any food safety issues. Subsequently, the court denied the motion for summary judgment. A jury trial was then held. The jury eventually held for the defendants, denying that Santiago proved she had a sincerely held belief in the religion (EEOC v. Papin slip op.).

This case is important in several ways. First it shows a court would be willing to accept a factual basis that abnegation of one's religion (versus a specific prohibition within the religion) could render an accommodation not reasonable. This could allow any plaintiff to claim that covering a tattoo or removing a piercing is abnegating a religion. It would not require that any tenet within that religion show a prohibition of removing or covering the tattoo or piercing. Employers would do well to follow further analysis of EEOC v. Papin, since there could be far-reaching implications relative to existing and future policies. Second, the EEOC argued for an injunction and punitive damages based on the defendants' policy of asking employees for religious-based waivers--a policy the EEOC claims violates Title VII. The EEOC argues that through this practice, the defendants "impermissibly pass on the validity of the employees' religious beliefs rather than on the sincerity of those beliefs" (EEOC v. Papin slip op., 5). The court found no injunction was needed since defendants had changed their policy, and that

... it cannot be said that "research" regarding a religious practice amounts per se to impermissible questioning of the "validity" of a religion rather than of the sincerity of the person holding the religious belief or of the religious nature of the belief (EEOC v. Papin slip op., 10).

However, when an employer is designing a policy for determining whether there is a sincerely held religious belief, this should be kept in mind. The court noted:

The difference between an employer's insistence that a request for accommodation be based on a valid religious belief and the employer's consideration of the sincerity of a belief is subtle but crucial. The relevant question is whether the belief is sincerely held as opposed to merely a personal preference.... In resolving this question, the employer should not be concerned with whether the belief is consistent with mainstream doctrine or even consistent with the beliefs of a single other person. Determination of sincerity is a delicate task, but an employer is entitled to investigate whether the belief is sincere and religious in nature. When a practice is not obviously based on religious belief, an employee should expect inquiry by an employer asked to accommodate the practice (EEOC v. Papin slip op., 10).

Local Ordinances

When creating an employment policy relating to tattoos or piercings, state and local statutes and ordinances involving discrimination must be taken into account (Kramer, 2006). Many jurisdictions include more protected classes than those available to plaintiffs in Title VII claims. An example of this is the case of Sam's Club v. Madison Equal Opportunities Commission (2003). In this case, the plaintiff, Tonya Meir, was fired for wearing an eyebrow ring in violation of defendant Sam's Club's dress code. Sam's Club had a policy that prohibited facial jewelry. The dress code was "intended to convey that employees ... were neat and clean, and were not flashy in appearance." It was also noted that "Sam's Club considers facial piercings new and not consistent with the conservative image it wanted to display" (Sam's Club v. Madison Equal Opportunities Commission 4). Meir sued under a local Madison, Wisconsin, ordinance that provided that it was illegal discrimination to fail to hire or discharge someone because of physical appearance. The basis of the lawsuit was that the eyebrow ring was part of physical appearance. Meir won her case before the Madison Equal Opportunities Commission (MEOC), administrative body tasked with enforcing the ordinance. Sam's was successful in having the MEOC ruling overturned on appeal. The basis of the appeal was definition of physical appearance in the ordinance, as follows:

... the outward appearance of any person, irrespective of sex, with regard to hair style, beards, manner of dress, weight, height, facial features, or other aspects of appearance. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed attire, if and when such requirement is uniformly applied for admittance to a public accommodation or to employees in a business establishment for a reasonable business purpose (Madison General Ordinance).

While the appellate court held that there was a reasonable business purpose, this case should still be read as cautionary. While Sam's Club prevailed in this case, it had to expend time and financial resources to prevail. Better dress code policies and procedures may have avoided this loss of time and money.

Future Trends

While courts consistently uphold dress codes that include limiting tattoos and body piercings, limitations may be harder to enforce as these practices become more mainstream. Currently, when an employer restricts tattoos and piercings, even in cases where it is claimed to be in violation of Title VII, the courts allow an undue hardship defense based on keeping a professional image for the company. While the courts are divided whether direct evidence is needed to decide if something specifically detracts from that image (as in the Red Robin Case), or if the perception of the company is enough (as in the Swartzentruber and Cloutier cases), the newer cases seem to require showing evidence that hypothetical hardships are not enough. If companies are required to prove actual hardship, and tattoos and piercings are more accepted and commonplace (and therefore "normal"), then the level of proof will also rise. Also, as tattoos and piercings become more common, it is easy to foresee a rise in the number of state and local ordinances that prohibit discrimination based on them. This will force companies to be more specific in their dress codes. A comment on the Cloutier case pointed that: "It seems possible that the court's rationale--customer preference--may cause more problems in the future, as it hardly seems likely that customer preference will suffice as a justification in all, or perhaps even many, cases" (Fox, 2006).

Another trend may also be toward adding extra protection for gender discrimination into dress code enforcement. Traditionally, the courts have held that it is not a violation of Title VII for dress codes to be separate for genders as long as the codes are applied equally. Cases along this line originated with different requirements of hair length for men and women in the workplace. For example, in the 1976 case of Earwood v. Continental Southeast Airlines, the court held that differing standards in hair length, even though they are based in gender stereotypes, were allowable. The court ruled that since hair-length is not an immutable characteristic, the employer's desire to have their employees "neat and cleaned and groomed in a manner commensurate with their jobs" is permissable (Earwood 1350). This case relied on the rationale of the often-cited case Knott v. Missouri, which succinctly summarizes the law on hair length:

Defendant's hair length requirement for male employees is part of a comprehensive personal grooming code applicable to all employees. While no hair length restriction is applicable to females, all employees must conform to certain standards of dress. Where, as here, such policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities (Knott v. Missouri 1252).

The Knott court then concluded "that minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of [Title VII]." This line of reasoning was then applied to cases in which men were terminated for wearing earrings. For example, in Capaldo v. Pan American Federal Credit Union, the plaintiff was terminated for wearing an earring, while the employer's policy allowed women to wear earrings. Again the court said the policy was not a pretext from excluding either sex from employment, and that an employer is permitted to exercise concern for the business image created by its' employees appearance, so the policy was not in violation of Title VII.

This line of cases was called into question when an employer was sued for gender discrimination for applying a dress code based on differing gender rules for tattoos at the workplace. In Hub Folding Box Company v. Massachusetts Commission Against Discrimination, the plaintiff, Deborah Connor, had a heart shaped tattoo on her arm. She was pressured to cover up her tattoo or face dismissal. A male employee, Bob Lawrence, had a tattoo of the United States Navy Insignia, which he was not forced to cover. Conner then filed a complaint against Hub Folding Box Company with the Massachusetts Commission Against Discrimination. The employer was asked to explain to Conner why the two were treated differently, and the employer responded that:

"... customers would have a bad feeling about [Hub] when they saw [Connor's] tattoo" since a "tattoo [on a woman] symbolize[d] that she was either a prostitute, or on drugs, or from a broken home." The circumstances between Connor and Lawrence were different ... because Lawrence was a hero who had served his country (Hub Folding Box Company 1).

The administrative tribunal in this case ruled that this was gender discrimination. The tribunal held:

Hub's reason for having in essence two standards respecting tattoos, one for men and one for women, stemmed from [Hub's] beliefs that (1) women with tattoos are ne'er-do-wells whereas men with tattoos are heroes and (2) Hub's customers would not like seeing tattoos on a female employee. This reasoning, which caused Connor to feel unequal to her male counterparts, is not a legitimate basis for treating men and women differently in the workplace. In fact, it is outdated gender stereotypes such as these which antidiscrimination laws were designed to eradicate (Hub Folding Box Company 2).

Thus, the rationale used in the cases relating to hair and earrings, which allowed for differing dress codes for different genders, was rejected in this case. The tribunal did not find that Hub's rationale, its gender-specific views of tattoos, and the reaction of its customers were a legitimate and nondiscriminatory reason for its policy. It must be noted that this is a case from the late 1980s and probably would not garner the same attention today; it is an example of how far society has come in its acceptance of such issues.

This rationale could lead to an increase in disparate impact claims for discrimination, and not only in the area of gender. The 2006 study on tattoos in the Journal of the American Academy of Dermatology showed a higher incidence of tattooing among Hispanics in America versus non-Hispanics (38 percent to 23 percent). If an employer was in an area with a large Hispanic population, and made a policy banning visible tattoos in the workplace, one could see how this would disparately affect the hiring of Hispanics. If the courts limit the defense of customer perception as an undue hardship on the employer, this could lead to a Title VII claim.

Similarly, commentators have recently proffered the notion that mutable characteristics (such as tattoos and piercings) can lead to trait discrimination. (2) Trait discrimination happens when an employer does not focus a hiring decision on a protected class per se, but instead focuses on a trait associated with the class. Not allowing an Afro hairstyle in the workplace, which the EEOC has stated is a cultural symbol of being African-American, would be racial prejudice even though the policy is facially neutral towards race. (Bandsuch 310) Another example would be that a company does not hire masculine women or effeminate men. If tattoos subjectively make a women look more masculine, or earrings make a man look more effeminate, one could easily see how this could become a back door attempt at sex discrimination in violation of Title VII--if the rationale in the Hub case were to be more accepted. This interpretation could also be expanded to other forms of discrimination such as in a jurisdiction that prohibits sexual orientation discrimination, e.g., a woman not being hired because her tattoo or large piercing may be perceived as making her appear to be homosexual.

So What Now?

It appears clear that society's view of body modifications is changing as more and more people seek tattoos, piercings, and other modifications. It can be argued that employers will need to change their hiring practices as the pool of otherwise qualified applicants displays previously unacceptable modifications. It should also be recognized that society in general is becoming more accepting of these alterations, so the employer's argument against hiring or retaining persons with modifications is becoming weak in many cases and possibly adverse to the interests of the organization.

What to Do

As society evolves, so should employers' policies and procedures. From a practical standpoint, all policies and procedures must be viewed from an EEOC perspective. Not only can their inquiries be a nuisance, at best, but they take valuable resources of money and time to address--even ones that are unwarranted. Considerations should also include the impact on the organization. Certainly unintended consequences can accrue from uninformed or biased views. It might be wise for employers to reflect on the following points as policies and procedures are reviewed process:

1. Beware of Title VII. Test decisions in light of Title VII. Courts are broadening their views of discrimination to reflect the changes in society. The cases involving Gunite, Costco, Red Robin, and Sam's give a glimpse into how the courts are viewing such matters as religion and workplace appearance. It would be wise to carefully review all policies in light of Title VII and the current interpretations of the law.

2. Conform to state and local laws. These laws are often more restrictive than federal laws. The unintended consequences of violating these laws can be troublesome and costly.

3. Take seriously claims of religious and other forms of discrimination. As noted in the Papin case, the practice of religion is not clear-cut. Thoroughly investigate claims of religious discrimination and seek the advice of legal experts.

4. Have legitimate business reasons for restrictions in the dress code. The primary defense against a claim that a dress code is discriminatory is that there is a legitimate business reason for the restriction. This reason should avoid "any correlation to protected class identity" (Bandsuch 339). The Costco case illustrates the court's view on accommodating business reasons while clearly considering whether a protected class is being violated.

5. Know your customer base. If the organization discriminates in hiring based on body modifications, it is wise to have data to support undue hardship on the firm. Some courts are now requiring data to support blanket claims that customers would not like to be served by employees with tattoos or piercings.

6. Know the implications of your dress code. Dress codes should take into consideration not only the protected classes, but also group identities and the general sensibilities of the customer or client base. The aforementioned KKK symbol tattooed as a religious observance on an employee's arm is a good example of violating the general public's sensibilities. Be sure to know the latest symbols and their meaning. Generational representatives can be a valuable asset to your process. Also, be aware of the dress code's being too restrictive. A general policy that prohibits visible tattoos may eliminate from consideration a potential employee who has permanent make-up (which is technically a facial tattoo).

7. Be fair, mentor your employees. Even in a company that does not discriminate on the basis of body modifications in hiring, it would seem reasonable to convey the company's view on these issues as they relate to consideration for advancement. In today's business environment rarely, if ever, do you see upper management in mainstream organizations displaying tattoos or other modifications. Employees should be aware of this possible limitation if higher positions are being considered. The reality is that while such modifications may fall under the protection of Title VII, they could have the silent effect of being used, even subliminally, to deny promotion. It is very difficult to prove that this was the reason, just as it is very difficult to determine if age was a reason for denial for employment or promotion.

8. Know when to change your stance. Carefully examine your reasons for your policies. Are you still operating under outdated assumptions? Are you missing potentially valuable employees because of long held prejudice or stereotypical views? While the hiring team may have their biases, acting upon them may affect the future of the organization. Some of today's best candidates may have modifications that you consider undesirable. Who knows, as these people grow and mature in their careers the modifications may suddenly disappear. After all, they have to be competitive in their market.

9. Make clear the repercussions of violations of the dress code. Make sure that procedures are established for violations of the code and make sure that they are consistently followed. Had Subway enforced their policy that nose rings presented a safety concern, instead of telling Santiago to stay away when DAI was coming to visit, the court may have granted summary judgment.

A View Toward the Future

At present, tattoos, body piercings and other forms of body modifications are not widely accepted in the white-collar workplace or in the retail sector, and potential hires should be cognizant of the negative impact they may have in regard to hiring, retention, and promotion. Obviously, from the employer's perspective, considerable care should be taken not to engage in unlawful or unwise employment practices. Beyond the legal aspects, companies may wish to analyze policies more closely in light of changing demographics and social norms. A policy may be technically legal but practically or ethically wrong.

Probably both groups need to accommodate the other during times of social change. The employee needs to use discretion in the workplace. Employers should recognize that the paradigm is shifting and that body modifications are becoming more mainstream. Old stigmas are steadily being removed. A little patience, a little tolerance, and a little common sense may go a long way toward reducing the frictions during this transitional period. Remember long hair?

REFERENCES

Albright, M. (2009, November 10). Brandon Mall among those welcoming tattoo artists, botox injection services and others. St. Petersburg Times.

Bandsuch, M. R. (2009). Dressing up Title VII's analysis of workplace appearance policies. Columbia Human Rights Law Review, 40, 318.

Black, H. C., Nolan, J. R., and Nolan-Haley, J. M. (1990). Black's Law Dictionary. St. Paul, Minn: West Group, Sixth edition.

Burger chain to pay $150,000 to resolve EEOC religious discrimination suit. (2005, September 16). EEOC Press Release. Retrieved on December 13, 2009, from http:// www.eeoc.gov/eeoc/newsroom/release/9-16-05.cfm

Capaldo v. Pan American Federal Credit Union, No. 86 CV 1944, 1987 WL 9687 (E.D.N.Y.)(unpublished).

Civil Rights Act of 1964, 42 U.S.C.[section] 1981-2000 (2000).

Civil Rights Act of 1964, 42 U.S.C. [section] 2000e-2(a)(1)-(2), (k)(1)(A)(i), and (m) (2000).

Cloutier v. Costco, 390 F.3d 126 (1st Cir. 2004), cert. denied, 125 S.Ct. 2940 (2005).

Earwood v. Continental Southeast Airlines, 539 F.2d 1349 (1976).

EEOC v. Papin. No. 6:07-cv-1548-Orl-28GJK, slip op. (M.D. Fla. July 28, 2009).

EEOC v. Papin 2009 U.S. Dist. LEXIS 30391 (Mid. Dist. Fl. 2009).

EEOC v. Red Robin 2005 U.S. Dist LEXIS 36219 (West. Dist. Wash. 2005).

Fox, M. W. (2006, June). Piercings makeup, and appearance: The changing face of discrimination law. Texas Bar Journal, 69, 564.

Harkins, C. A. (2006, May 17). Tattoos and copyright infringement: Celebrities, marketers, and business beware of the ink. Lewis & Clark Law Review, 10(2), 313-314.

How young people view their lives, futures and politics: A portrait of "generation next." (2007, January 9). The Pew Research Center. Retrieved on December 13, 2009, from http://people-press.org/reports/pdf/300.pdf

Hub Folding Box Company v. Massachusetts Commission Against Discrimination, No.99-P-1848, 2001 WL 789248 (Mass.App.Ct.)(unpublished).

James, H. R. (2008). If you are attractive and you know it, please apply: Appearance-based discrimination and employers' discretion. Valparaiso University Law Review, 42, 635.

Knott v. Missouri Pac. Ry. Co. 527 F.2d 1249 (8th Cir. 1975).

Kramer, R. J. (2006). Recent developments in government operations. Generation Y: Tattoos, piercings and other issues for the private and public employer. Urban Lawyer, 38(3), 539-611.

Laumann, A. E., and Derick, A. J. (2006, September). Tattoos and body piercings in the United States: A national data set. Journal of the American Academy of Dermatology, 55(3), 413-421.

Laumann, A. E., and Derick, A. J. (2007, February). Tattoos and body piercing. Journal of the American Academy of Dermatology, 56(2), 349.

Madison General Ordinance [section] 32.23(2)bb.

One out of ten Americans is tattooed. (1936, December 21). Time, p.30.

Ponte, L. M. and Gillan, J. L., Gender performance over job performance: Body art work rules and the continuing subordination of the feminine, Duke Journal of Gender Law and Policy, 14, 319 (January, 2007).Riggs v. City of Fort Worth 229 F.2d Supp. 572 (N. D. Tex. 2002).

Swartzentruber v. Gunite Corp., 99 F. Supp. 976 (N. Dist. of Indiana 2000).

Tattoos now mainstream. (2006, June 10). Retrieved on December 11, 2009, from http://www.msnbc.msn.com/id/ 13245154.

Three in ten Americans with a tattoo say having one makes them feel sexier. (2008, February 12).

The Harris Poll #15. Retrieved on December 13, 2009, from http://www.harrisinteractive.com/harris_poll/ index.asp?PID=868

Sam's Club v. Madison Equal Opportunities Commission, 2003 Wisc. App. LEXIS 682 (Wisc. Ct. App. 2003)(unpublished).

Yuracko, K. A. (2004). Trait discrimination as sex discrimination: An argument against neutrality. Texas Law Review, 83, 167.

Brian Elzweig, Texas A&M University-Corpus Christi

Donna K. Peeples, Texas A&M University-Corpus Christi

(1) For a general discussion of this issue in relation to public employees, see Ronald J. Kramer, Recent Developments in Government Operations Generation Y: Tattoos, Piercings and Other Issues for the Private and Public Employer, Urban Lawyer Volume 38 issue 3 p. 539-611 (Summer 2006), and Riggs v. City of Fort Worth 229 F.2d Supp. 572 (N. D. Tex. 2002).

(2) For a thorough discussion of trait discrimination, see Kimberly A. Yuracko, Trait Discrimination as Sex Discrimination: An Argument Against Neutrality, 83 Texas Law Review 167 (2004) and Lucille M. Ponte and Jennifer L. Gillan, Gender Performance Over Job Performance: Body Art Work Rules and the Continuing Subordination of the Feminine, 14 Duke Journal of Gender Law and Policy 319 (January, 2007)

Brian Elzweig is an assistant professor of business law at Texas A&M University-Corpus Christi. He earned his J.D. from California Western School of Law and his LL.M. from Georgetown University Law Center. In addition to traditional legal research, Dr. Elzweig has a research interest in legal issues that affect management of the millennial generation. Donna K. Peeples is an associate professor of management at Texas A&M University-Corpus Christi. She holds a Ph.D. from Texas A&M University. Dr. Peeples has co-authored two textbooks in the area of real estate and numerous management articles dealing with business ethics, gender issues in the workplace, and work values.
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