Tattoos and Piercings . . . and a Model Dress Code

Dear Rita: Our younger employees are increasingly decorated with ink and metal. Most of them conceal their "body art" while at work but in summer it's become more visible. We don't care about tattoos and piercing but we don't want to look at them, and we don't think our visitors do either. Is it legal for us to ban visible body art? -- Artless Old Fogey

Dear Artless:

We're not surprised the issue has surfaced in your organization. AA recent study found that about one-half of people in their twenties sport body piercings beyond their ears, and one-fourth of Americans between the age of 18 and 50 are tattooed (Journal of the American Academy of Dermatology, 6/06). Visible tattoos and piercingsA can be legally regulated, but as you probably know, your employees may chafe at such rules.

The cultural shift towards more body art sends a shout out to organizations that can't be ignored. If you are seeking to keep body art covered to present a more professional appearance,A you should consider updating your dress codes. (See link at end of this article to a Model Dress Code.)

There are no federal laws governing employee dress codes. Employers have the right to project the image of their choosing and may implement whatever dress guidelines they feel are appropriate, as long as they do not discriminate on the basis of gender, race, religion, disability, or any other federally protected status. It is the anti-discrimination laws (Title VII of the Civil Rights Act of 1964) that can make it tricky to strike a balance between requiring appropriate dress and respecting employees' legal rights.

In a nutshell, prohibition of visible tattoos or piercings is legal, unless it collides with religious and gender issues. In such cases there's a likelihood you can "step into" a discrimination lawsuit. Here is a brief description of such concerns:

Religious discrimination

Regardless of what is in your dress code, you may be required to make a reasonable accommodation for an employee whose religious beliefs or traditionsA include having visible tattoos or piercings.

For example, a food chain hired an employee who, because of his practice of an ancient Egyptian faith, had religious inscriptions tattooed around both of his wrists. During the six months the employee had worked at the company, not a single customer, co-worker or the employee's immediate supervisor had complained about the tattoos. However, management fired him for violating the dress code . . . which led to an award of $150,000 for the employer's failure to reasonably accommodate the employee's religious beliefs.

Likewise, courtsA have sanctioned employers for prohibiting yarmulkes, head coverings or religious insignias such as crosses in the office environment. On the other hand, courts have upheld an employer's right to prohibit religious garb such as long skirts and flowing robes where they present a safety risk, such as on a warehouse floor. A rule requiring men who work in a kitchen to be clean shaven may be allowed, even for those members of religious groups that traditionally do not shave. Because each situation is "fact-intensive," you should consult a labor law professional before denying an employee an accommodation based on religious beliefs.

Gender discrimination

Even though gender bias can be a factor in litigation, you can have differentA dress codes for men and women. For example, courts have concluded that women may be allowed to pierce their ears but men are not allowed to wear earrings in the same workplace. These findings are basedA on a "customary code of grooming" rather than on gender. With hair length, courts have uniformly ruled that different hair standards do not violate Title VII.

Whenever possible, of course, the best practice is to have the same dress requirements for women and men. Employers should regulate flowing hair for everyone when it poses a health concern, such as in a food kitchen. Instead of requiring jacket and tie for men, the handbook could require" professional business attire" for all employees (both men and women).

You should also check your state laws affecting dress code requirements. For example, California has enacted a law prohibiting employers from implementing dress codes that restrict women from wearing pants.

With regard to body art, an employer can impose different standards for different classes of employees, but not for different genders. For example, an employer can ban visible tattoos and piercings for employees who meet face-to-face with customers, as long as the employer applies the dress code equally to all employees in that class, absent religious accommodations. But an employer cannot prohibit visible tattoos on women, while allowing men to show off their body art or allow women to sport body piercings, while precluding men from doing the same, with the exception of pierced ears (go figure).

Does this mean that if you have a receptionist who gets a facial tattoo, you can then fire her? Yes, if you have a clear dress code policy prohibiting visible tattoos for those employees who interface with the public.

Effective practice

In short, an employer has a legitimate business interest in presenting a workforce that is "reasonably professional in appearance" and whose workplace is "safe." Therefore, an employer can implement grooming and dress policies to protect those interests. We suggest basing dress codes on objective criteria such as workplace safety and professional image, and to include a statement in the personnel handbook reaffirming that the nonprofit will make every effort to accommodate employees' religious beliefs.

It's legal and a good idea to establish boundaries with respect to appearance: most employers prohibit unprofessional attire such as torn clothing, flip-flops, cut-off shorts, halter tops, sheer garments, sweat suits, tee-shirts with sayings and visible body art. Employers who do allow American casual dress should be careful not to prohibit forms of ethnic dress, such as traditional African or Indian attire.

Yes, dress in the workplace is evolving. Even us "stodgy attorneys" have segued from suits to "business casual." Makes oneA ponder what amazing body bling is hidden underA your co-worker'sA business attire.

See also: Model Dress Code for Nonprofits

Pamela Fyfe is an HR attorney at the Nonprofit Insurance Alliance Group, where she advises members on a wide variety of HR issues.

Comments (15)

  • "Artless Old Fogey" describes him(her?) self well. He should relax. I'm an old-ish, non-pierced (except for one hole in each earlobe), non-tattooed person who sees tats and piercings just about everywhere in my midwestern town. I also see clothes, hair colors, manicures, skin colors and body shapes that are not like mine. Why do they matter? How do they take away from someone's ability to do a job? If a person is polite, informed, helpful, clean, etc., why should anyone care about their bodies?

    Aug 18, 2009
  • Well said my man, well said. My job just enforced a "new dresscode" with no visible tattoos. I have almost a full sleeve that is very colorful with hawaiian flowers and a koifish that tells a story about my heritage. Now I have to wear long sleeves when its 90 degrees out, even though they hired me knowing I had these tattoos. I work in a retail store and have had nothing but compliments. Guess what? I got sent home today without pay because I forgot my sweater. I'm on the verge of pulling an "erin brockovich". Hope you will be at the top of my list. Thanks again for your input. Aloha--- jayde

    Sep 15, 2009
  • Body art is like any other art in any other medium - only about 10 percent of it is excellent. If we consider body art displayed in public to be analogous to art in public places, then we could have one set of criteria. Most businesses that display art in their public spaces do so with a studied intent to convey a message about the business through the type of art they choose. If body art makes that claim, then the question becomes one of how it fits into the business' oeuvre.
    I have seen some of the ten percent, excellent, stunning body art and I enjoy it very much. (I'm 64 years old.) Unfortunately, the other 90 percent inspires me to hand over a long-sleeved shirt.

    Aug 18, 2009
  • I recall one time on a vacation road trip sitting down to eat in a restaurant. The server came to the table and it was immediately obvious he wore a pair of ear lobe stretching devices designed to be cranked open periodically for the hole in the ear lobe to be made bigger. Well, he must have cranked them recently because his ear lobes were an angry red color....I immediately lost my appetite, made some excuse and headed for the door before I hurled. I'm not normally squeamish, but something about this visual in a food environment was extremely off putting.
    Personally I want to live in a world where you are free to express yourself and for the most part embrace that option...however I like my meals to be free of angry inflamed, possibly infected, skin, especially where I have to look at it.
    I wondered to myself if the business owner would have cared that a customer left due to his employee's body art, some how I think so. Although I did not speak to a manager, I guess I spoke clearly by leaving. I have had this same reaction at several deli counters too, pierced eyebrows and lips, especially if reddened for any reason, just turns me off my sliced deli meat and cheese order!

    Aug 19, 2009
  • Absolutely! I wish I could let more of these folks doing extreme stuff (esp. the earlobe stretching and the facial piercings) know what they are giving up when they do this. They have the right to do whatever they want to themselves. But I have the right not to hire them. Since these things make me queasy, I would definitely avoid having them in my workplace. I am more than a little lost as to what these types of body art mean any more anyway: "I'm a nonconformist, just like all my friends?"

    Aug 25, 2009
  • All comments thus far have been interesting and insightful. I am 28 years old, have had multiple ear piercings, but have allowed the "extras" to disappear over time, to the point where I have only single ear piercings now. I considered getting a tattoo (or two) in college. My mother even has a small simple tattoo on her shoulder, and one of my friends has a father with ear piercings (and he works in a corporate environment). I don't feel uncomfortable around these methods of personal expression, perhaps because they are understated.
    There is something very short-sighted and "right now" about most (but not all) tattoos and body art; I prefer a more temporary form of expression, should I decide to reinvent myself later :}. I also decided several years ago that, as a nonprofit professional, I would like to find ways to express myself that don't make others uncomfortable. My professional life was just beginning, and I was willing to forgo extreme expression for being sure of myself and adopting a distinctive personal style. I stand out now for my style of dress and the accessories I choose, rather than something more permanent.
    I work for an arts nonprofit, where personal expression is generally more acceptable than in other business environments, but I still think that employers have the right to dictate what message that they are sending to their customers, patrons and the public. As much as body art or tattoos don't necessarily make a person less professional, much of the viewing public has not yet reached an all-inclusive "comfort level" with these forms of expression.
    I might still get a tattoo, if I felt it would achieve a particular life goal of mine, but I wouldn't get one that couldn't be concealed if I decided later that I didn't want it to be visible. I also think that people who could be barred by working for a particular company for tattoos and body art might be more content in a company that welcomes the forms of expression that they value personally. Even within each industry, there are bound to be firms or companies that have different dress requirements and regulations.
    Interesting and timely topic. Keep up the good work :}!

    Aug 26, 2009
  • At 61 years of age, and as a bisexual and transgender (Two-Spirit) person who was periodically bullied for not being masculine enough (long hair in high school, etc.) and now am often rejected by the Queer community for not being
    feminine or perhaps radical-appearing enough, I say "Oh, can't we all just get along?" If someone's hair, piercings, clothing or tatoos don't actually pose a health hazard---why fuss over it when there are more important issues such as: do they know how to make change? Are they polite and accomodating?
    Do they know anything about the work or commodities they deal with? I'd much rather have somebody waiting on me where those questions are clearly dealt with than somebody in a business suit with a sneering attitude or lack of expertise. Anon.

    Sep 14, 2009
  • all I have to say is i am 17 years old and I am still in high schol I have a monroe (which is thne top lip peircing) and I have snake bites (which are the peircings on either side of the bottom lip) personally i see tattoos and peircings a good form of expression (i also have my smiley peirced which you know is the little flap of skin on the upper lip in your mouth) Body art is a good form of expression to the highiest level and as everyone else have been saying why try to fight it as long as it does not pose a health hazard then why try to fight the fact theat the world is changing the social norm is changing as well. There are many people (mostly younger) who have them and it is no longer a form of social taboo and honestly I have to say all it is, is the in thing right now and I am pretty sure it will change

    desiree Johnson

    Oct 14, 2009
  • all I have to say is i am 17 years old and I am still in high schol I have a monroe (which is top lip peircing)

    Dec 21, 2009
  • Anonymous

    Well apparently you should stay one more year and brush up on your spelling! School is spelled with two oo's and the rule is "i before e except after c".

    Oct 06, 2010
  • Anonymous

    It's called a "typo". We're not computers, so people do not automatically come with spell check. Albeit, piercing is spelled i before e", caffeine, ancient, being, weird, eight, protein, their, and many other words do not follow this rule. So instead of trying to critique someone's spelling errors, you should give your opinion on the actual topic at hand. I agree and disagree with some of the above comments. I may not have any visible tattoos and/or facial piercings, but I think those who have them should be allowed to have a job and keep it because of their work ethic. If it bothers someone to the point of wanting them to leave the workplace, ask if they'd be willing to move to a different location so they're not in eye-sight of anyone who is in that category. Since I have worked in a corporate setting, I can understand both sides. But companies should obviously state in their rules and regulations obviously what is and is not allowed. Personally, I would rather work in an environment that promotes the creativity, but it is up to not only the one hiring, but also the one applying for a job what are they willing to give up to be where they want.

    Sep 26, 2011
  • Anonymous

    why is it as soon as we enter a job its a whole new world??? the business world. with many more restrictions than the actual world. yet the business world helps many people from the actual world who are pierced and tattoo'd, so why should it matter if the associates do too? i already was getting descriminated against because i am one of the more younger associates at age 18, and now that i got my eye brow pierced as a birthday gift, i'm descriminated against even more. It's not new to me. people get mad at the work force because they are taught to have these restrictions, however, most customers don't mind and even like the body art.

    and as said above where only 10% is good doesn't matter if it's good or bad, cuz to others it means something. Also what's bad to you might be good to others. Artists express themselves through their art whether you like it or not, i don't think it's a big deal. They know not everyone will like their art, but its from them so they like it anyways. its a part of them being expressed

    Apr 09, 2010
  • Anonymous

    I understand that not everyone can support body modification, especially in the workplace, but I do not think that anyone should be discriminated against for their choices. I realize that extensive body art is not appropriate for all walks of life and do think that it is up to the employer to set their dress codes. I do however, think that it needs to be said that my tattoos have never prevented or held me back from being successful. They have never offended any of my coworkers or customers, if anything they have been a great icebreaker and conversation starter.

    Dec 27, 2010
  • Anonymous

    Im 19 years old and I have my ears periced and a nose pericing (i keep a stud in it most of the time, if not its a loop) and i get compliment all the time for it. I also have a tattoo on my foot that means allot to me. Its paw prints of my dog that passed on, she was 17. I hate how people automatically think tattoos are bad when they might respresent something meaningful to us. Also, it is not a fact that tattoos are a "health risk". Its just the appearence the buisness does not want..which they should rethink due to the fact that a mijority has either a pericing or tattoo. My job does not believe we should cover our tattoos or take out our pericing. Its freedom of expression and we all have a voice on this.

    Dec 06, 2011
  • Anonymous

    It has become rule at so many places. Because people with tattoos are increasing day by day. I think it's good because so many people get tattoo unnecessarily at so many places which really looks wierd. Hollywood Tattoo Shops

    Jun 15, 2012

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