Wednesday, October 1, 2008

Employment decisions based on tattoos are not discriminatory

Last week I was having lunch in the Tulsa airport, and saw a woman with green hair, a bull ring through her nose, and at least a dozen large tattoos. I turned to my partner and asked, "Who would ever hire her?" Apparently, a lot of employers are asking the same question.

According to last Wednesday's New York Times, courts continue to find policies prohibiting tattoos and body modifications to be nondiscriminatory.

While there is ample evidence of tattooing’s migration from the backwaters of alternative culture into the mainstream (or at least onto some part of David Beckham’s body), we are still a long way from seeing facial tattoos on the selling floor at Bloomingdale’s or the trading floor of the stock exchange.

In case after case, the courts have found on-the-job appearance requirements — including policies forbidding tattoos and body modifications — to be nondiscriminatory.

Among the better publicized cases was that of Kimberly Cloutier, a Massachusetts woman who sued for the right to wear her 11 earrings and eyebrow piercings while at work as a Costco cashier. Claiming membership in the Church of Body Modifications, Ms. Cloutier argued her piercings were a form of religious expression. Although she ultimately lost, her case was soon followed by others in Massachusetts and in Washington State.

There is nothing discriminatory on its face about refusing to hire the green-haired, tattooed, or pierced. It is simply a decision of the type of image that your company wants to project. Of course, it matters that such a policy is applied non-discriminatorily. In other words, a company can't have two standards to visible body art -- one for men and one for women, or one for whites and one for blacks. So, to answer my question, a company should not be liable if it rejects the green-haired airport barfly because of her unique appearance.