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The illustrated worker

The increasing popularity of "body art" - in the form of tattoos and piercings - is providing challenges for employers in every industry and profession.

Recent data suggests that body art has gone "mainstream." A Pew Research Center poll reported that 36 percent of 18 to 25 year-olds and 40 percent of 26 to 40year olds have at least one tattoo. In those same age groups, 30 percent and 22 percent respectively have a piercing somewhere other than their ears. Many employers have dress and grooming policies that seek to limit or prohibit employees' open display of body art at work. For example, since 2006, Los Angeles city firefighters have been required to cover all tattoos while on the job.

Protecting Employers' Legitimate Interests

Although some employers, particularly in traditionally creative fields, may encourage employee displays of body art as a form of self-expression, many others worry that their employees' visible body piercings and tattoos may be off-putting or even offensive to customers, investors and the public at large.

What is an employer to do? Those with too-stringent grooming and dress code requirements risk driving off talented employees and hurting employee morale, while at the same time, an employer may have legitimate concerns that an employee's mode of self-expression will offend clients.

Employers have wide latitude to establish dress and grooming policies under the law, but it also makes sense to consider the underlying reasons for appearance requirements before implementing a strict policy. Obviously, not all positions require traditional business dress and not all positions involve interactions with customers or the public. This means that strict grooming and dress policies prohibiting all displays of tattoos and piercings may be unnecessary, and perhaps demoralizing, to a growing segment of employees.

Developing An Effective Policy

Even employers that permit piercings or tattoos may find it necessary to set some limits. A detailed dress code and grooming policy should clearly spell out what is permitted. For example, if you permit the display of tattoos, you may prohibit the display of sexually graphic, violent or otherwise offensive tattoos, or may require that employees limit the number of visible tattoos.
To ensure employee support and compliance, employers should consider involving workers in the development of dress and grooming policies. Employers should also be prepared to make a business case for any restrictive policy decisions. Employees are more likely to support a dress and grooming policy if they have been given the opportunity to provide input.

Religious Issues

Employers must also consider how to respond if an employee asserts a right to a particular tattoo, jewelry or hairstyle on religious grounds. You cannot treat employees or applicants more or less favorably because of religious beliefs or practices. In fact, you must accommodate employees' sincerely held religious practices, unless doing so would impose an undue hardship.

According to the EEOC, modification of grooming requirements is an accommodation that may be required. But you are not required to accommodate religious beliefs or practices if doing so would impose an undue hardship on legitimate business interests. The standard for demonstrating an undue hardship is not high, but employers must be prepared to show that they, indeed, have considered the request for accommodation, as opposed to simply dismissing it out of hand.

Consistent and even-handed treatment of all such requests is key. This is another situation where supervisory training is critical. No matter how employers deal with these issues, applicable policies should be clearly stated in writing and readily available to all employees.

While employers still retain wide latitude, practical, social and legal factors are requiring more careful consideration of such requests that might have been readily (and safely) dismissed several years ago.
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Danielle Urban

Danielle S. Urban is an attorney in the Denver office of national labor and employment law firm, Fisher & Phillips. Fisher & Phillips LLP represents employers nationally in labor, employment, civil rights, employee benefits and immigration matters. Contact her at durban@laborlawyers.com or 303.218.3650.

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