September 1, 2008

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Silk Ties and Tattoos

The Culture Clash Over Workplace Dress Codes

Gretta Spendlove

September 1, 2008

“At my day job in finance I keep my tattoos concealed. But at my night job as a booking agent I show them off.” “Initially, I was asked to remove my nose ring when I went to court or to take a deposition…As soon as people got used to it, it was no longer an issue.” The above quotes are taken from the 2007 Tattoo and Body Piercing Survey conducted by Vault, Inc., a publisher of career information. Forty-two percent of the survey’s respondents had tattoos or body piercings (besides pierced ears). Eighty-five percent of the respondents said they believed tattoos and body piercings impede a worker’s chances of finding a job. “In general, individuals with tattoos and body piercings are often viewed as ‘rougher’ or ‘less educated,’” one survey participant commented. As America’s workplace becomes more diversified in terms of age, cultural attitudes, nationalities, religions and ethnic groups, workplace attire and grooming standards become ever more complicated. Employers typically adopt dress codes to project a professional image to the world via their workers, but what restrictions can they make without violating the law? What happens when corporate dress codes collide with religious beliefs or ethnic traditions? The Costco Clash A recent case brought against Costco by an employee with multiple earrings, four tattoos and an eyebrow piercing helped clarify the laws regarding dress codes in the workplace. Kimberly Cloutier began working for Costco in 1997, and in 2001 she was terminated. From 1997 to 2001, Costco revised its employee dress code several times, eventually adopting a code which prohibited all facial jewelry, aside from earrings. When Costco required Cloutier to remove her eyebrow piercing, Cloutier refused, claiming that as a member of the Church of Body Modification, her eyebrow piercing was a religious practice. Costco offered Cloutier various “reasonable accommodations,” including suggestions to cover her eyebrow piercing with a flesh-covered Band-Aid or substitute a clear plastic “retainer” for her eyebrow ring. Cloutier claimed that wearing her eyebrow ring was the only “reasonable accommodation” she would agree to. Eventually, Costco terminated Cloutier, and she filed a claim with the federal Equal Employment Opportunity Commission for religious discrimination, then a lawsuit. The EEOC ruled in favor of Cloutier, but the federal court in Massachusetts dismissed Cloutier’s claim against Costco. The court questioned whether the Church of Body Modification was a bona fide religion, but decided that, even if it was, Costco’s dress code was reasonable. “Courts considering religious discrimination claims have upheld dress code policies that, like Costco’s, are designed to appeal to customer preference or to promote a professional public image,” the court’s decision said. Costco’s responsibility, in this situation, was to offer a “reasonable accommodation” unless the accommodation would create an “undue hardship” for the employer’s business. According to the court, Costco’s willingness to let Cloutier continue working so long as she covered up her eyebrow jewelry was a “reasonable accommodation.” Lessons From the Costco Case As a general rule, employers may adopt dress and grooming codes that restrict employees’ clothing, hairstyles, jewelry, and body tattoos and piercings. Courts recognize the importance of an employer’s public image, and grant them the right to protect that image from being compromised. Companies may restrict their employees from wearing such things as mustaches, beards, tattoos and graphic anti-abortion pins. Employers may not, however, discriminate on the basis of race, age, gender, religion, national origin, or disability. So, in other words, if an employee claims his or her religion requires a certain type of wardrobe, the employer must offer adjustments but not at the expense of the business. “Undue hardship” is broadly defined by the justice system. One court found that exempting a Sikh job applicant, whose religion required that he wear a beard, from a restaurant’s no-facial-hair policy would constitute undue hardship on the business. Another court found that a city was justified in dismissing a police officer for wearing a gold cross pin on his uniform, in violation of the city’s “no pin” policy, because allowing the pin would create an undue hardship for the city. What Happens Next? One of the emerging issues in the American workplace is the extent to which employers can control habits and tendencies which employees claim are private. Can an employer prohibit smoking, even outside the workplace, because it raises the employer’s insurance premiums? Can companies refuse to hire people with high cholesterol levels, or people who have such risky hobbies as scuba diving? At least fourteen states, not including Utah, have enacted “lifestyle laws” restricting the extent to which employers can regulate such matters. So far, the lifestyle laws don’t affect dress standards within the workplace. However, as conflict between employers’ and employees’ rights over lifestyle issues is resolved by new laws or lawsuits, employer’s dress codes may evolve also.
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