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When R. Brent Ballow’s son told him he was getting a tattoo, the employment law expert gave some unsolicited professional advice: Get it someplace where it doesn’t show.
Just how far can employers go in acting against workers based on professional image alone? In this week’s webinar, “Addressing Tattoos, Piercings, and Cross-Dressing in the Workplace,” Ballow discussed some of the risks of taking adverse employment action based on a worker’s appearance.
Legal issues related to employee lifestyle are rapidly changing. Ballow, who has more than 20 years of experience in labor and employee relations, says that lifestyle discrimination suits are catching many employers off-guard.
Ballow, co-owner of Nashville’s Avant Resources, advises businesses on a range of thorny labor and employment issues, including how to address self-expression in the workplace.
He stressed to participants that employers are free to set their own workplace appearance standards. But where businesses stumble, he says, is by either not having a policy in place that clearly sets out expectations, or by having personal appearance policies that are poorly drafted or inconsistently applied.
Lifestyle choices per se aren’t subject to Title VII, which prohibits discrimination based on race, color, religion, sex, and national origin. But lifestyle discrimination can nonetheless run afoul of the law. Dress codes, for example, can violate Title VII’s prohibition of discrimination based on national origin. And appearance policies that are applied differently to men than they are to women can trigger sex-discrimination claims.
“A lot of plaintiffs attorneys are trying to stick these nontraditional claims into other categories,” he says. For employers, discriminating against workers based on their appearance can result in costly litigation and even bad press.
Attitudes about employee lifestyle differences vary widely, as do notions of the relationship between worker competencies and their outward appearance. Ballow acknowledges that when considering tattoos and piercings in particular, what’s viewed as “excessive” is largely a generational issue.
Webinar participants were primarily lawyers and human resource professionals, representing employers ranging from government entities to hospitals. Fifty-eight percent of participants indicated that employees at their companies had “excessive” tattoos or piercings. However, only 19 percent of all respondents indicated that they had taken adverse action against an employee because of excessive tattoos or piercings.
In the last few years, lawyers have struggled alongside the courts and federal agencies, including the U.S. Equal Employment Opportunity Commission, to keep up with evolving social norms. “This is a developing area,” says Ballow, adding that there has been a lot of inconsistency in the outcome of lawsuits in recent years.
In EEOC v. Red Robin Gourmet Burgers Inc., an employee was fired for violating a dress code prohibiting visible tattoos. The employee had worked for the company for six months without incident before being fired.
Ballow says Red Robin should have disciplined the manager who initially allowed the tattoo. “The case demonstrates a situation we see too often,” he says, “where an employer has not been consistent.”
In this instance, the employee’s tattoos depicted inscriptions that were associated with his faith. Ballow says a significant portion of lifestyle discrimination claims are rooted in religious discrimination. In those cases, he says, it’s best not to put up a real challenge to the employee’s belief. “Flawless adherence” to the faith is not a requirement of the law, he says.
Once the employee’s tattoo became a problem for the employer, Ballow says the restaurant should have attempted to accommodate him. For example, if the employee couldn’t cover the tattoo, Red Robin could have placed him in a non-public position or considered making an exception to its policy.
But the hardline position taken by the company “certainly wasn’t worth paying someone $150,000 over,” he says.
In an interview with CorpCounsel.com, Ballow said that because failure-to-hire claims are hard for plaintiffs to prove, most claims against companies are brought by existing employees who have either been terminated or retaliated against for their appearance or behavior.
To avoid pitfalls, he says employers should have written personal appearance policies. Sixty-six percent of webinar participants said they had such a policy in place. Although there is no one-size-fits-all policy for companies, Ballow says all policies should stress how the rules are associated with the employer’s business interest—including any safety and productivity components.
If the employee’s profession involves operating equipment, for instance, he says the employer would have safety concerns associated with wearing jewelry. Employers should document such reasons in their policies, says Ballow. The business interest should also take into account the expectations of customers, as well as the need for recognizing employee self-expression.
Secondly, it’s crucial to apply the appearance policy consistently. Policies should be enforced uniformly across various business locations and in a manner that does not discriminate against members of protected classes.
Just over half of all webinar respondents (54 percent) said their managers had received training on how to respond to these types of sensitive issues. “Companies are really damaging themselves by not doing the necessary training for managers and employees,” Ballow says. “They fall behind, and that’s how they get in trouble.”
Even when employers act within the bounds of the law in taking an adverse employment action, there can be a backlash. “When these things are not handled well, there’s a lawsuit, and that’s money,” says Ballow. “But there’s also the media and public attention that may be hard to monetize.”
He adds, “Handling matters correctly from the get-go and not making them worthy of media attention is something employers should strive for.”
So, how does Ballow handle these issues in his own office?
He says he doesn’t personally take issue with personal appearance too often. “If somebody does the job and does it well,” Ballow says, “I think I need to focus on that first.”
See also: "Tattoo You," The Careerist, July 2011.
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