Employee Tattoos and Body Piercings October 2007 Employers ...

schaffer.law.com

Employee Tattoos and Body Piercings October 2007 Employers ...

Employee Tattoos and Body Piercings

October 2007

Employers generally have a right to enforce dress codes, as well as grooming and

appearance standards. Such policies may limit or prohibit the display of tattoos and piercings.

Courts have generally rejected employee complaints raising first amendment claims, or claims of

physical appearance discrimination.

For instance, the Sixth Circuit Court of Appeals rejected a state park department worker’s

claim that he was terminated in violation of the first amendment when he refused to cover a US

Navy tattoo as required by the department’s dress code. The court found his tattoo was a form of

personal expression that did not involve a matter of public concern; therefore, it was not

protected speech under the first amendment. Similarly, the Connecticut District Court found that

the Hartford Police department did not violate an officer’s first amendment rights when it

required him to cover a racist tattoo during work hours.

Aside from constitutional challenges, employees sometimes claim physical appearance or

religious discrimination. In one such case, Sam’s Club was found to have not violated a local

Madison, Wisconsin ordinance prohibiting discrimination based on personal appearance when it

fired an employee who violated its no facial jewelry policy. The court found the employer’s

policy had a legitimate business purpose and therefore complied with the law.

Where, however, the employee raises a religious basis for the tattoo or piercing, the

analysis becomes more complex. In one Massachusetts case, the First Circuit Court of Appeals

found Costco’s “no facial jewelry” policy was not a form of religious discrimination, even


though the employee argued her membership in the Church of Body Modification required her to

display facial jewelry at all times. The court found that requiring an exception to its rule would

cause Costco an undue hardship in maintaining a particular public image.

In contrast, a Washington state court found that Red Robin Restaurant may have violated

Title VII’s prohibition on religious discrimination when it barred an employee from displaying a

tiny wrist tattoo he received during a Kemet, or ancient Egyptian, religious ceremony. There the

court, in denying the company’s motion for summary judgment, found there was a genuine

question whether permitting the tattoo’s display would cause Red Robin an undue hardship.

While employers may normally regulate the dress and appearance of employees, special

care should be exercised when an employee claims a religious basis for their dress to ensure that

reasonable accommodations are considered, and rejected only if they pose an undue hardship.

For more information contact scott@schaffer-law.com or (860) 216-1965.

www.schaffer-law.com

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