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.
But what about in an employment context? If an employee shows up Monday morning with a profanity tattooed on his forehead, can management fire him? Just how far can employers go in acting against workers on the basis of professional image alone?
In a February webinar and subsequent interview, Ballow discussed some of the risks of taking adverse employment action based on a worker's appearance. Legal issues related to employee lifestyle are changing rapidly, and Ballow, who has more than 20 years of experience in labor and employee relations, said that lifestyle discrimination suits are catching many employers off guard.
As the co-owner of Nashville's Avant Resources, Ballow advises businesses on a range of thorny labor and employment issues, including how to address self-expression in the workplace. He stressed in the webinar that employers are free to set their own workplace appearance standards. But businesses stumble, he said, by not having a policy in place that clearly lays 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 women than they are to men can trigger sex-discrimination claims.
"A lot of plaintiffs attorneys are trying to stick these nontraditional claims into other categories," Ballow said. For employers, the result may be costly litigation and bad press.
Attitudes about employee lifestyle differences vary widely, as do notions of the relationship between worker competencies and outward appearance. Ballow acknowledged that when considering tattoos and piercings in particular, what's viewed as "excessive" is largely a generational issue.
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 lawsuit results have been inconsistent.
In Riggs v. City of Fort Worth , for example, a heavily tattooed police officer was suspended without pay. One of his tattoos included a Celtic design. The department accommodated him by requiring that he wear long sleeves and pants. But after twice suffering from heat exhaustion, he was transferred to desk duty. The officer claimed that he had been singled out on the basis of his race, sex, and national origin (a white male of Celtic ancestry), but the U.S. District Court for the Northern District of Texas dismissed the lawsuit in 2002.
In EEOC v. Red Robin Gourmet Burgers Inc. , on the other hand, an employee was fired for violating a dress code prohibiting visible tattoos. He had worked for the company for six months without incident before being fired. Ballow said that Red Robin should have disciplined the manager who initially failed to object to the tattoo. "The case demonstrates a situation we see too often," he said, "where an employer has not been consistent."
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