Piercings, Tattoos, Make-Up and the Changing Face of Employment Law
by Michael R. Buchanan and Janet Landry
Beginning in the 1960s, Congress passed a series of employment laws based upon what would be considered immutable characteristics—an applicant/employee was either male or female, a member of a particular race/ethnic group, a member of a recognized religious group or nonreligious. Employment litigation focused on how individuals fit within a protected category and how the employer treated them in the workplace.
It is a new century and the “face” of employment law has changed. In increasing numbers, individuals sporting tattoos, piercings, make-up, jewelry and hairdos worthy of Captain Jack Sparrow, Boy George and the Girl with the Dragon Tattoo are applying for jobs. These applications pose the question of whether an employer is free to make employment decisions on physical appearance issues that arguably are matters of personal choice (rather than an immutable, legally protected characteristic).
The answer is one that frustrates employers who want bright lines to follow: it depends. In the private sector, inventive employees are advancing religious and gender-based arguments seeking legal protection for appearance. An illustrative case is Swartzentruber v. Gunite Corp., 99 F. Supp. 2d 976 (N.D. Ind. 2000). Mr. Swartzentruber proved ultimately unsuccessful in convincing the trial court that his membership in the “Church of the American Knights of the Ku Klux Klan” entitled him to display the “Fiery Cross” tattooed on his arm. Mr. Swartzentruber alleged that the “Fiery Cross” was one of seven sacred symbols of his religion. Rather than struggle with the difficult issue of “what is a sincerely held religious belief,” the Court held that requiring Swartzentruber to cover his tattoo did not unduly infringe upon the practice of his religion and that this accommodation served his employer’s interest in promoting harmonious race relations in the workplace.
An opposite result was obtained in a lawsuit brought against the Red Robin Restaurant company. The employee claimed to be a follower of the “Kemetic” religion, a modern practice of ancient Egyptian traditions. At issue were two tattoos on the employee’s wrists, written in the Coptic language. Translated into English, the tattoos said: “My father Ra is Lord. I am the son who exists of his father. I am the father who exists of his son.”
Red Robin terminated the employee after he refused to cover his tattoos. In the resulting lawsuit filed by the EEOC, the Court denied Red Robin’s summary judgment motion holding that it failed to demonstrate that an exception to its “no tattoo or piercings” policy would create undue hardship for the company. The case later settled for $150,000.
Why did Mr. Swartzentruber lose and Ra’s son win? These two cases illustrate that outcomes are inherently fact specific. Mr. Swartzentruber’s tattoo arguably could offend customers, vendors and co-workers, and covering the tattoo did not restrict the “practice” of his religious belief (e.g. there was no contention that his religion dictated that the tattoo be displayed). In contrast, Red Robin’s argument was undermined when its CFO was quoted as saying the company had “Christian” values and sought out “that all-American kid from the suburbs” for its server positions, not those with “that urban kind of experience.” The CFO’s comments created a fact issue as to whether religious or race discrimination played a role in the employee’s termination.
The religious claims of Mr. Swartzentruber and Ra’s son are mirrored in a growing body of case law devoted to claims of “gender stereotyping.” Men are suing for the right to wear make-up and jewelry, women for the right to forego workplace obligations “to look feminine.” As with religious challenges to appearance issues, outcomes are exceedingly fact specific.
In a large number of cases, tattoos and piercings do not implicate religious or gender issues. In a handful of cases, the same appearance issues may trigger legal protection. Employers have a better chance of prevailing if they follow some common-sense rules:
- If your company has a “brand” that requires a certain appearance—especially for those who interact face-to-face with the public—incorporate reference to the brand into your appearance and dress code.
- Adopt appearance and dress code policies phrased in support of tolerance, diversity and nondiscrimination;
- When issues arise, make individual assessments. A tattooed employee might be okay in a Buzz Lightyear costume at a Disney Theme Park and not okay as a server at the Disney Malt Shop;
- In general, asking an employee to remove body piercing paraphernalia, or to cover tattoos, is a reasonable accommodation, especially if the tattoo or piercing is capable of communicating a message at odds with the employer’s commitment to tolerance and diversity;
- Gender stereotyping claims require careful analysis. Do not treat them lightly;
- When Captain Jack applies for that receptionist position, do not knee-jerk the response. Consider seeking legal advice. Counsel can help you ask the right questions to determine if a legally protectable right has been implicated.
Mike Buchanan is a Shareholder with Ogletree Deakins and can be reached at Michael.Buchanan@ogletreedeakins.com. Janet Landry is a second-year law student at the SMU Dedman School of Law where she is a member of the school’s Labor and Employment Mock Trial Competition Team.