If you watched the Bravo TV reality show, “Project Runway”, this season, you saw one of the designers sporting extremely unattractive tattoos all over his body, particularly several lines of writing around his neck.
It is a good thing that Jeffrey Sebelia is talented enough as a fashion designer to have his own clothing line, because if he had to ever seek employment with me or most of the employers I represent, he would never be hired. His appearance is so off-putting to professionals and business people that his employment chances would be slim in this area of the country.
I’m often asked if you as an employer can “discriminate” against an employee by telling him his tattoos are unacceptable? What about his pierced tongue? Do you have a legal right as an employer to make certain items of appearance unacceptable in your workplace?
If you are a private employer in Texas, the answer is “yes”.
Discrimination laws are generally limited to those characteristics an employee didn’t choose and can’t change, such as her race, gender, national origin or disability. Rarely have courts upheld any employee’s claim that she was discriminated against because she couldn’t display her choice of tattoos or a pierced belly button.
Public employers, such as cities and state agencies, have to consider constitutional issues such as free speech and due process. In Connecticut, some police officers were ordered to cover spider web tattoos on their arms, an order they claimed violated their free speech rights because the tattoos symbolized hatred of nonwhites and Jews. They sued, but the City ultimately prevailed because the court found that the City’s legitimate interest in fostering better race relations outweighed the free speech argument.
Occasionally, an employee of a private company will claim that displaying a tattoo or a piercing is a religious act, such as the Costco case a few years ago, when an employee argued that she was a member of the “Church of Body Modification”. The appellate court deciding the case dodged the decision of whether that is a real religion by finding that Costco had reasonably accommodated her religion anyway by giving her the option (which she refused) to cover the piercings while working.
Importantly, the court also said:
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 as business determination is within its discretion. As another court has explained, “Even assuming the defendant’s 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.”
In other words, you can decide which grooming standards are acceptable in your business and, if you enforce them consistently with all employees, then you are doing nothing illegal.
I know of no case in Texas where an employee successfully sued a private company because the employee was prohibited from displaying tattoos or piercings.
If this has become a problem in your workforce, put a statement in your policy manual that addresses this issue generally so that your employees know what is expected:
Your appearance reflects not only on you as an individual, but on the business as well. The Company is known for its professional atmosphere. Therefore, we expect you to dress professionally and appropriately when representing the Company.
You can also list what elements of appearance are prohibited, such as shorts, sweat suits, flip flop sandals, and other items you find unprofessional. As to tattoos and body piercings, you can prohibit them with language such as:
· Facial jewelry, such as eyebrow rings, nose rings, lip rings, and tongue studs, is not professionally appropriate and must not be worn while at work. No more than two earrings may be worn by men or women.
· Torso body piercings with visible jewelry or jewelry that can be seen through or under clothing must not be worn while at work.
· Visible tattoos and similar body art must be covered while at work.
As with all legal issues, be consistent in how you as an employer enforce this policy. Then relax and be confident in requiring the people who work for you to act and look professional.