The following article is taken from law.com and was written for the New York Law Journal as:
“Keeping Up Appearances at Work”– Louis PechmanNew York Law JournalDecember 16, 2005.
It is generally recognized that employers are free to set reasonable dress codes and grooming standards that are business-justified and applied in a nondiscriminatory manner.
In the case of individuals with tattoos and piercings, there is no federal or state law that affords them explicit protection from employment discrimination on the basis of their appearance. Employees in such cases have met with limited success in trying to establish a connection between their body art and a protected class such as religion, gender or national origin.
In Cloutier v. Costco Wholesale,[FOOTNOTE 1] Kimberly Cloutier, a Costco cashier who was terminated after refusing to remove her eyebrow piercing, alleged that she was discriminated against based on her religion. Cloutier refused to comply with Costco’s dress code prohibiting facial or tongue jewelry, citing her membership in the Church of Body Modification, which practices piercing, tattooing, branding, transdermal or subcutaneous implants and body manipulation such as flesh hook suspensions and pulling. The church proclaims that it is aimed at achieving acceptance in society so that its members may “celebrate their bodies with modification.” Cloutier rejected Costco’s proposed accommodation to cover her eyebrow piercing with a flesh-colored bandage, insisting that she be exempted from the dress code because her religion required her to display her facial jewelry at all times.
The 1st U.S. Circuit Court of Appeals found that Costco had no duty to agree to Cloutier’s request that she be exempted from the dress code. In the court’s view, such an accommodation would pose an undue hardship because it would have an adverse effect on Costco’s legitimate business interest in maintaining a “neat, clean and professional image.” The court held that a religious accommodation constitutes an undue hardship when it would impose upon an employer more than a de minimus cost, including lost business or noneconomic costs. The court recognized that “Costco is far from unique in adopting personal appearance standards to promote and protect its image” and observed that “courts have long recognized the importance of personal appearance regulations.” Such dress codes, it added, which are designed to appeal to customer preference or promote a professional public image, have been upheld.
A dress code policy is permissible under federal and state discrimination laws as long as it is enforced on an equal basis. In Kleinsorge v. Eyeland Corp.,[FOOTNOTE 2] Frank Kleinsorge, an optometrist, was terminated “for cause” for wearing an earring to work in violation of a workplace rule prohibiting men from wearing jewelry. He sued, claiming that the company’s policy was discriminatory because women were permitted to wear earrings while men were not. The U.S. District Court for the Eastern District of Pennsylvania dismissed the claim because Kleinsorge did not allege that the company’s grooming policies were unevenly enforced as between male and female employees.
The Kleinsorge court relied heavily on a decision by the U.S. District Court for the Eastern District of New York, Capaldo v. Pan American Federal Credit Union,[FOOTNOTE 3] in which Judge Thomas C. Platt upheld a company policy prohibiting male employees from wearing earrings. Robert Capaldo, a loan counselor, was informed by the company’s president that he did not present an appropriate professional image and was terminated for failing to remove his earring. The court, describing the company’s policy as a “minor sex-based distinction in dress and grooming codes,” dismissed the claim because there was no allegation that the company’s policy was unevenly applied. Specifically, Capaldo did not assert that female employees at the company were free from all grooming standards or that the company unevenly applied its grooming policies as among male and female employees. Because the company did not impose special appearance rules on one sex and not the other, no inference of sex discrimination arose.
More recently, the Supreme Court of Iowa agreed that a company’s grooming code that forbade male employees from wearing earrings at work did not constitute sex-based discrimination. In Pecenka v. Fareway Stores, Inc.,[FOOTNOTE 4] Michael Pecenka, a Fareway Stores employee was terminated for refusing to remove his ear stud while he worked. The court rejected Pecenka’s claim of disparate treatment, noting that the discrimination laws “were not meant to prohibit employers from instituting personal grooming codes which have a de minimus affect on employment.” Because the court concluded that the earring policy did not rise to the level of sex-based discrimination, the company did not need a business justification for it. The court also dismissed the claim of “sex-plus” discrimination, because wearing an earring is not an “immutable characteristic” and does not involve a “fundamental right” such as the right to marry or bear children and the company’s earring policy was not alleged to perpetuate a sexist or chauvinistic attitude in employment that significantly affected employment opportunities.
The unequal application of employment policies is always a source of potential liability for employers. In Hub Folding Box Company, Inc. v. Massachusetts Commission Against Discrimination,[FOOTNOTE 5] Deborah Connor, a clerk at the Hub Folding Box Co., sued her employer for gender discrimination and retaliation. Although a male employee was not required to cover his Navy tattoo, Connor was told to cover a heart-shaped tattoo on her forearm or be terminated. The company was concerned that customers who saw Connor’s tattoo would have a negative reaction because a tattoo on a woman “symbolized that she was either a prostitute, on drugs, or from a broken home.” In the employer’s view, women with tattoos were ne’er-do-wells, whereas men with tattoos were heroes. The employer’s reasoning, according to the court, was based on outdated gender stereotypes and constituted an unlawful basis for treating men and women differently in the workplace.
Disparate treatment was also the basis of a discrimination claim in Riggs v. City of Forth Worth.[FOOTNOTE 6] Michael Riggs, a police officer, sued the Fort Worth, Texas, police department for discrimination because of his Celtic national origin, race and fundamental right of free expression. While other officers in the bike unit with tattoos were allowed to wear shorts and short sleeves, the department claimed that Riggs’ tattoos were excessive to the point of being unprofessional. Riggs’ tattoos included a Celtic tribal band, a Celtic design that included his wife’s name, a mermaid, a family crest, the cartoon character Jessica Rabbit and a two-foot by two-foot full-color rendering on his back of St. Michael spearing Satan. The court found that Riggs failed to provide any evidence that the department’s reasons for requiring him to wear long sleeves and pants or for transferring him out of his unit were discriminatory.
The nature of the images depicted by tattoos weighs in the balance where claims of religious discrimination are made. In Swartzentruber v. Gunite Corp.,[FOOTNOTE 7] Sheldon Swartzentruber, a member of the Church of the American Knights of the Klu Klux Klan, sued his employer for religious discrimination after being terminated because of his tattoo, which extended from his elbow to his wrist, depicting a hooded figure standing in front of a burning cross. The court held that the company reasonably accommodated Swartzentruber’s asserted religious beliefs by allowing him to continue working so long as he covered his tattoo. Any alternative accommodation, the court suggested, would have imposed an undue hardship on both the company and Swartzentruber because the tattoo offended his coworkers and made them uncomfortable. Moreover, the court held that a claim for hostile environment harassment could not succeed because any harassment was a result of self-identification as a Klu Klux Klan member, not because of religious beliefs.
Prohibitions against tattoos in the workplace have also been challenged on First Amendment grounds. Courts that have considered the issue have found that tattoos are not protected speech under the First Amendment. For example, the 8th U.S. Circuit Court of Appeals concluded that, “the tattoo is nothing more than ‘self expression,’ unlike other forms of expression or conduct which receive First Amendment protection.”[FOOTNOTE 8] Because tattoos are not protected expression, an employer must show merely that the challenged classification is rationally related to a legitimate state interest rather than having to meet the more stringent strict scrutiny standard.
Even when a tattoo is deemed speech on a matter of public concern, the public interest at issue has been found to outweigh the employee’s interest in displaying their tattoo. For example, in Baldetta v. Harborview Medical Center,[FOOTNOTE 9] John Baldetta, an HIV-positive hospital employee, was terminated after refusing to cover a tattoo saying “HIV positive.” In finding that the hospital’s interest in facilitating patients’ recovery outweighed Baldetta’s interest in “speaking” on a matter of public concern, the court relied on the opinion of doctors who concluded that display of the tattoo could cause stress in patients and hinder their recovery.
Employees have also failed to establish that the right to display tattoos is protected by the First Amendment right to free association and privacy. In Montoya v. Giusto,[FOOTNOTE 10] a group of corrections deputies alleged that their First Amendment rights were violated after they were terminated for displaying tattoos that read “Brotherhood of Strong.” The U.S. District Court for the District of Oregon found that the decision to wear the tattoos did not enjoy constitutional protection because the tattoos, which signified “a loosely knit friendship of weight lifters,” was not the kind of political, social, economic, educational, religious or cultural association protected by the First Amendment.
A few local jurisdictions have enacted legislation prohibiting discrimination on the basis of appearance. The District of Columbia has prohibited discrimination on the basis of “personal appearance.”[FOOTNOTE 11] Similarly, the city of Santa Cruz, Calif., has a statute barring discrimination on the basis of “physical characteristics.”[FOOTNOTE 12] A unique statute in Madison, Wis., classifies “physical appearance” as a protected class, defining it in terms of immutable characteristics, such as height, weight and facial features, but also includes mutable characteristics like hairstyle, beards and manner of dress.[FOOTNOTE 13]
Although Wisconsin’s statute protects appearance, employer requirements that are uniformly applied “in a business establishment for a reasonable business purpose” are exempted. The breadth of protection afforded by this statute was tested in Sam’s Club Inc. v. Madison Equal Opportunities Comm’n,[FOOTNOTE 14] in which the Madison Equal Opportunities Commission decided that Sam’s Club had violated the ordinance by terminating an employee who wore an eyebrow ring in violation of company dress code. The Wisconsin Court of Appeals reversed, stating “Sam’s Club attempts to project … a conservative, no frills, no flash image for its business; it does so because Sam’s Club wants to convey to customers that they are getting the best value for their money.” The court noted it was undisputed that facial jewelry and eyebrow rings in particular do not convey a conservative image. Inasmuch as Sam’s Club’s prohibition came within that exception of a “reasonable business purpose,” its decision to terminate was held to be legal.
In sum, individuals with piercings or tattoos have limited rights in the workplace. It is the rare case where a protected characteristic of an employee is so inextricably linked with a piercing or tattoo that it implicates legal interest. Underlying this lack of protection is that tattoos and piercings are neither explicitly protected by statute nor immutable characteristics. Rather, tattoos and piercings are voluntary body art that an employer may choose to exclude from the workplace.
Louis Pechman is a partner at Berke-Weiss & Pechman, concentrating in labor and employment law.
FN1 390 F3d 126 (1st Cir. 2004).
FN2 No. Civ. A. 99-5025, 2000 WL 124559 (E.D.PA. Jan. 31, 2000).
FN3 No. 86 Civ. 1944, 1987 WL 9687 (EDNY March 30, 1987).
FN4 672 NW2d 800 (2003).
FN5 750 NE2d 523 (Mass. App. Ct. 2001).
FN6 229 FSupp2d 572 (N.D. Tex. 2002).
FN7 99 FSupp2d 976 (N.D. Ind. 2000).
FN8 Stephenson v. Davenport Comm. Sch. Dist., 110 F3d 1303 (8th Cir. 1997).
FN9 116 F3d 482 (9th Cir. 1997).
FN10 Civ. No. 02-446-JE, 2004 WL 3030104 (D. Ore. Nov. 24, 2004).
FN11 D.C. Human Rights Act, §§1-2512 (1981).
FN12 Santa Cruz, Calif., Ordinance 92-11 (April 28, 1992).
FN13 Madison General Ordinance, §3.23(2)(bb).
FN14 266 Wis2d 1060, 668 NW2d 562 (Wis. Ct. App. 2003).
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