Question:

It may be my imagination, but it seems like every young person who applies to work in my retail store lately either has a nose ring or their tongue is pierced, or they are covered with tattoos. I don’t consider myself to be especially conservative, but this “look” just doesn’t seem appropriate to me in the workplace and I’m not comfortable hiring these individuals to work in a retail capacity. Is it legal for me to refuse to hire someone with a tattoo or piercings, or can I require them to change their appearance for work?

Answer:

It’s not your imagination that body art has become increasingly popular (and prevalent) in recent years, especially with younger individuals. A recent study found that 36% of Americans between the ages of 25 and 29 have at least one tattoo, and that 16% of all U.S. adults have a tattoo. Another study that was conducted by the Mayo Clinic in 2002 found that more than half of the university undergraduate students surveyed had some type of body piercing, and that 23% had one or more tattoos.

It is not only young people who are currently sporting tattoos and body piercings, however. Tattoos and body jewelry are viewed as a means of self-expression, and can be seen on people from virtually all professions and walks of life. As tattoos and body piercing have become more socially acceptable, employers are facing more and more applicants and employees who have visible body art. As you pointed out, while this type of expression may be perfectly acceptable elsewhere, many employers are uncomfortable hiring people with visible body art to work in their places of business.

Employers are generally free to create policies that prohibit visible tattoos and body piercings at work. This is typically done through a policy that specifies what grooming standards are expected while the employee is working (a grooming policy can specifically require that tattoos be covered, and that body or other jewelry either be limited or not be worn at all).

While the law permits employers to regulate the appearance of its employees in the workplace, employers need to be careful not to implement policies regarding personal appearance that could have a discriminatory effect on an employee’s age, religion, race, national origin, disability or gender. An employer may also be required to accommodate an employee’s religious beliefs (which could feasibly include ritualistic body modification) if doing so would not place an undue burden on the employer.

Even in light of these requirements, there are still a number of things that you as an employer can do to ensure that your employees present an appearance that you are comfortable with:

  1. Have a policy in place that addresses acceptable appearance standards for your employees while they are at work. This policy should appear in your employee handbook, so that all employees have the opportunity to familiarize themselves with it before they begin working.
  2. Ensure that you have a legitimate business reason for any appearance standards. For example, your handbook might require employees to present a conservative and neat appearance in order to maintain the professionalism of the workplace.
  3. Be aware of policies that could have a disparate impact on a protected group (e.g., you would want to avoid placing different requirements on male and female employees).
  4. Remember that you have a duty to accommodate an employee’s religious beliefs, which could include some forms of body art.
  5. Don’t attempt to regulate an employee’s off-duty appearance.

You may also want to consider whether you really want to adopt a policy against tattoos and piercings. In your retail business, such a policy may very well be a necessity. However, employers whose businesses involve little or no customer or client contact may not need to implement such a strict appearance policy. This in turn allows them greater flexibility when considering potential applicants who are qualified for the job and who could prove to be valuable employees.
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