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.
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
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
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
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).
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
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
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
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
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.
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
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
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?
Albright, M. (2009, November 10). Brandon Mall among those
welcoming tattoo artists, botox injection services and others. St.
Bandsuch, M. R. (2009). Dressing up Title VII's analysis of
workplace appearance policies. Columbia Human Rights Law Review, 40,
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://
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
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.
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
Hub Folding Box Company v. Massachusetts Commission Against
Discrimination, No.99-P-1848, 2001 WL 789248
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),
Madison General Ordinance [section] 32.23(2)bb.
One out of ten Americans is tattooed. (1936, December 21). Time,
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
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
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.
(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.