Tattoos, body piercings, dreadlocks – can an employer prohibit such bodily adornments? Can an employer require a “look policy?”
We just read about a woman in Edmonton, Canada who has 22 visible body piercings and claims that employer dress codes discriminate against her, and that “one prospective employer threw out her résumé in front of her.” Does she have a case?
“Slim to non-existent” say Canadian lawyers, and we would have to agree. The president and founder of the Workplace Fairness Institute “noted that companies can refuse to hire or fire non-unionized workers for any reason so long as it’s not connected to a human rights violation.” “Fairness is not a requirement and in fact employers can discriminate against people. What they can’t do is discriminate on the basis of certain prohibited grounds.”
One image consultant said that companies work hard to create a specific image and employees should be prepared to represent that. “If you’re the type of person who chooses to put an ‘out there’ tattoo on your cheekbone, then maybe being an insurance agent isn’t the right job for you.” Another said that “The [employer] is going to perhaps wonder, ‘Will this person be able to conform to the rules that we have, or is this somebody who is more rebellious?’”
We posted a number of times that dress codes can run afoul of the anti-discrimination laws if they disparately impact protected classes, such as a ban on dreadlocks as applied to an employee who must wear them as part of a religious belief or practice. In our post of March 7th we said that “certain religions may require their adherents to conform to certain appearances, either clothing, body decoration or certain grooming habits. And employers may be required to accommodate such practices.” See our posts of October 16, 2013; July 9, 2012; February 11, 2011).
Accommodation for religious beliefs is the key.
The EEOC said recently that: “Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.”
In a just published guidance, the EEOC gave examples:
“Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”
An Alabama court recently dismissed a case where dreadlocks were not part of religious practice or belief since, it held, Title VII only prohibits discrimination based on unchangeable characteristics, such as race and sex. The Court disagreed with the EEOC that dreadlocks are an immutable characteristic because they are a “reasonable and natural” method of grooming the hair of African-Americans, stating that “A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic. … A hairstyle is not inevitable and immutable just because it is a reasonable result of hair texture, which is an immutable characteristic. … Title VII does not protect against discrimination based on traits, even a trait that has socio-cultural racial significance.”
Getting back to our pierced Canadian. She “has launched a campaign to make it illegal for employers to discriminate based on body modifications, something that would require an amendment to the Alberta Human Rights Act.”
Takeaway: To fall within Title VII’s protections, and, apparently, the Alberta Human Rights Act, hairstyle, tatoo and piercing claims must still be rooted in a religious or other protected characteristic.