ALM Properties, Inc.
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Is It Your Business?
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."
In this instance, the employee's tattoos were associated with his faith. The discharged worker sued for religious discrimination and settled with the employer for $150,000. A significant portion of lifestyle discrimination claims are rooted in religious discrimination, Ballow noted. In those cases, it's usually best not to challenge the employee's belief.
Once the employee's tattoo became a problem for the employer, 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 nonpublic position or considered making an exception to its policy, Ballow said. But the hard-line position taken by the company "certainly wasn't worth paying someone $150,000 over," he said.
To avoid pitfalls, employers should draft and disseminate written personal appearance policies. Sixty-six percent of the webinar participants said they had such a policy in place. (Additionally, 58 percent indicated that employees at their companies had "excessive" tattoos or piercings; however, only 19 percent said they'd taken adverse action against an employee as a result.) Although there is no one-size-fits-all policy for companies, Ballow said that all policies should stress how the rules are associated with the employer's business interest, including customer expectations and relevant safety concerns.
Just over half of all webinar respondents 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 said. "They fall behind, and that's how they get in trouble."
So how does Ballow handle these issues in his own office? He doesn't take issue with personal appearance too often. "If somebody does the job and does it well," he said, "I think I need to focus on that first."