Q. We have several employees with tattoos on their necks and forearms. Can we require them to cover up?
A. Many employers have in place employee dress codes, in an effort to maintain a certain brand image, comply with health standards, and foster professionalism. As tattoos, body piercings and other forms of body art are trending in today’s culture, some employers have struggled with whether such displays are in keeping with the company’s image. To what extent can an employer place rules on an employee’s appearance at work without violating anti-discrimination laws?
Generally speaking, employers are free to require employees to dress in a certain way. So, for example, an employer may require that an employee wear a certain uniform, cover up a tattoo or remove a nose ring. However, employers are required to reasonably accommodate an employee’s sincerely-held religious belief, including an employee’s dress or grooming practices that are for religious purposes, unless to do so would be an undue hardship on the employer’s business operations.
The EEOC has issued guidance stating that a religious accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. This is an easier standard for employers to meet than the “undue hardship” analysis under the Americans With Disabilities Act.
Thus, for example, it may not be a Title VII violation for an employer to require an employee of the Sikh faith to shave his beard if he (1) works with hazardous chemicals that require him to wear a respirator; (2) the beard prevents the required face seal to protect him from chemical exposure; and (3) there is no alternative device or method of doing the work that would not require him to shave his beard.
On the other hand, it would be a Title VII violation for an employer to prohibit an employee of the Muslim faith to wear her religious head covering where wearing the religious head covering does not pose an undue hardship, even if it results in complaints from other employees or customers who are not used to seeing such head coverings in the workplace.
As for tattoos and piercings, employees have no legal right to display body art, unless it is required for a sincerely held religious belief. Thus, employers may prohibit tattoos or may require employees to cover them up. Employers also are free to create a tattoo policy that prohibits sexist and racist images, and images that promote violence, so long as the policy is applied evenhandedly throughout employees of all protected categories.
-Tracey E. Diamond & LaVelle S. King