Your restaurant, your rules. You might not like tattoos and pierced body parts, and you can refuse to hire applicants based on your personal preference.
“In general, discrimination in employment decisions based on tattooing and body piercing is not illegal,” says Brian Elzweig, an assistant professor of business law at Texas A&M University-Corpus Christi. He and colleague Donna Peeples recently published a paper, “Tattoos and Piercings: Issues of Body Modification and the Workplace,” in the Society for Advancement of Management Advanced Management Journal.
There have been a number of prominent lawsuits over the right to tattoos or piercings. The most common claim, Elzweig says, is that the modification is protected under the First Amendment right to freedom of speech or expression. Court decisions have not recognized that right.
“So 99.9 percent of the time, if you don’t want to hire someone because their tattoos don’t go along with the image of your restaurant, that’s perfectly legal,” Elzweig says.
One notable exception to this general rule is when individuals claim their body modification is related to their membership in a protected class or religion. “You have to reasonably accommodate religious beliefs in the workplace,” he says.
The costs of not doing so can be considerable. In 2005, a Red Robin worker sued the company for insisting he cover a tattoo on his wrist with long sleeves. He claimed covering the tattoo would be inconsistent with his religious beliefs. Supported by the Equal Employment Opportunity Commission, the worker received a $150,000 settlement from the chain.
“That was an anomaly,” Elzweig notes. Generally employers who request that workers cover religious icons aren’t overstepping their authority because they are considered to be reasonably accommodating the religious belief. And employees generally accept these policies.
On the other hand, the popularity of in-your-face tattoos and piercings has watered down their impact so much that more guests don’t think twice about servers and cooks with them. Could it be time to rethink those policies?
Starbucks thinks so, based on a recent policy shift allowing tattoos and relaxing other former taboos, such as untucked shirts.
The change in attitude toward tattoos resulted from an employee-generated petition that eventually attracted more than 25,000 signatures. Starbucks does restrict the types of tattoos considered acceptable—nothing on the face and throat, and no profanity, hateful comments or lewd jokes—and also permits team members a modest amount of piercings, even ear gauges.
In addition to keeping workers happy, a more relaxed policy toward body modification also eases the process of recruiting. “You have to weigh the fact that a lot more of your top talent will be tattooed and pierced than used to be the case,” Elzweig says.
Here are Elzweig and Peeples' recommendations for employers to develop policies and procedures governing body modifications:
1. Carefully review policies in light of Title VII of the Civil Rights Act of 1964, which makes it “unlawful employment practice for an employer…to discrimination against any individual…because of such individual’s race, religion, sex or national origin.” While Title VII has no prohibition on company policies that dictate aspects of employee appearance, it’s important to understand its implications.
2. Conform to state and local laws, which are often more restrictive than federal laws.
3. Take seriously claims of religious and other forms of discrimination.
4. Have legitimate business reasons for restrictions in the dress code.
5. Know your guest base. Some courts now demand data supporting claims that customers object to employees with tattoos or piercings.
6. Understand the implications of your dress code. A KKK symbol will clearly offend many, but do you know the latest trends in symbols, acronyms and what they mean? Also, avoid being overly restrictive; a blanket prohibition of permanent tattoos could impact an employee with permanent makeup, which is actually a tattoo.
7. Be fair and mentor employees. You might not discriminate against body modifications in hiring, but will you promote someone who is aggressively tattooed or pierced? Make that policy clear to any workers interested in advancement.
8. Know when to change your stance. Are you operating under outdated assumptions? Owners and managers might not be crazy about body modifications, but they may be overlooking otherwise highly qualified candidates because of that bias.
9. Make clear the repercussions of violating the dress code. Establish procedures and make sure they are consistently followed.
Ultimately, rules about body art also depend on the setting.
“At a pizza joint with a hip vibe it might be completely acceptable,” Elzweig says, “but in five-star dining it might be completely unacceptable.”