I recently came across a problem area that I thought might be important enough to put into an e-zine. The issue has to do with body piercings and tattoos. What are the employer’s rights with regard to “controlling” employee decisions to decorate their bodies with tattoos or provide uniquely situated piercings? Of course, what I mean by the term “employer rights” involves the current state of employment law as it implies to any right of the employer to control-sanction-prohibit the free expression of employees related to decorating their bodies.
My first response to the above question is to encourage all of you to acquire the book Weirdos in the Workplace by John Putzier, published by Prentiss Hall with a 2004 copyright. This book briefly summarizes, in a somewhat entertaining fashion, the interaction between employment law and a host of issues related to unusual employee behavior in the workplace. For our purposes regarding this e-zine, page 48 from the book will do nicely:
Art is a GenY individualist whose hobby is to “personalize his body.” He has a bolt through his nose, a stud in his tongue, rings through his eyebrows and tattoos in all the right (or wrong) places. Art thinks of himself as, well… exactly that… living, walking “art.”
The book goes on to point out that “self-inflicted diversity” is not a protected class. “Art can express himself as painfully as he wishes when he is off the clock,” but the employer has substantial rights with regard to limiting body art in the workplace. The employer can require the removal of hardware, require that tattoos be covered with long sleeves, turtle necks, etc., can make job assignments where body art cannot be covered and can choose not to employee based on a reasonable decision that in-your-face body art will not present the desired public image.
To put the matter in perspective, body piercings and tattoos are considered by the court in the same category as dress codes. With this in mind, keep in fact the following four generalizations about employment law as it applies to dress codes:
The courts have always permitted employers to reasonably determine their public image which includes the right to set a dress code. Thus, IBM always had the right to require its employees to wear white shirts or blouses, ties, etc., a right that is enjoyed by any other employer.
Consistency is a critical factor that is almost always an essential tenet of employment law. That does not mean that all employees have to be treated exactly the same, but any differences should be explainable in business terms.
Your dress code needs to reasonably reflect the type of work that is being performed. For example, an old court case distinguished between employees who interact with the public and those who have no interaction with the public. In the first case the courts permitted the employer to require that all women wear skirts to work – I did mention that this is a very old court case, did I not? In the second case (no public contact) the courts found that requiring skirts was inappropriate because it had nothing to do with the company’s public image and was a hardship on the employees.
Sensitivity has to be paid to the relationship between the employer’s right to impose a dress code and issues related to discrimination around gender, race, religion, etc. If the dress code is perceived to discriminate against a protected class with no discernable business necessity, it can get thrown out. For example, requiring all of the young women in your employment to wear miniskirts will get you in serious trouble unless you are Hooters or some other similar establishment. From my perspective, if you do not understand why this is true, you are already in serious trouble.
The bottom line is this, you have, as the employer, a reasonable right to insist on compliance with a dress code which can include covering up tattoos, removing hardware and dressing appropriate for the position. The dress code can be stricter where employees are required to wear a uniform but can be imposed in a non-uniform situation. For example, the Air Force provides very strict guidelines for how Air Force personnel must present themselves. In this regard, note the following:
Females in uniform or in civilian clothes while on duty, may wear one small, spherical, conservative, diamond, gold, white pearl, silver pierced or clipped earring per earlobe; the earrings in both earlobes must match and the earrings must fit tightly without extending below the earlobes. (AFI 36-2903, Table 2.5)
I cannot imagine any of you who receive this e-zine wanting or needing to be this strict. On the other hand, if you believe the above requirement is a little rigid, then go to the internet, find the Air Force Uniform Policy and check what it has to say for men.
Let me close with this thought, the issue for most of you who read this e-zine is not going to be what you are permitted to do under law but rather what you can effectively implement with your employees. Creating a great deal of negative energy in your workplace by abruptly implementing a harsh and restrictive dress code is hardly what you want to do. At the same time, if you find that the body art of certain employees simply won’t cut it, then it is time to beef-up your dress code because the failure to take action will ultimately limit your effectiveness as an organization. If you need some help writing new policy on this matter, I will be glad to help.
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