When Body Art and Religion Come to Work
By: INGRID N. CULP
April 2006
No doubt you have seen them. Wait staff, bank tellers, cashiers, retail employees, perhaps even your own family members, donning the latest in body art. They have pierced part of their face or neck, undergone "hole stretching" to create a large hole in the lobe of their ear, or had an image tattooed onto their body. Body art has been on the rise for some time and the trend shows no sign of changing course.
Like most of us, individuals with body art need to work. There is oftentimes, however, a clash between employers' conservative expectations with regard to employee appearance and public image, and how employees wish to appear. For the most part, the law allows employers to set and enforce appearance policies so long as the policies do not discriminate on an unlawful basis such as age, race, or gender. The rules are less clear, though, when an employee claims that his or her body art is an expression of religious beliefs.
Title VII of the Civil Rights Act and the Minnesota Human Rights Act require employers to reasonably accommodate an employee's sincerely held religious beliefs. Unlike the high undue burden threshold applied in disability accommodation cases, a religious accommodation constitutes an undue hardship and, therefore, need not be provided, if it imposes more than a de minimis economic or non-economic cost on the employer.
Two recent cases addressed the issue of body art and an employer's duty of religious accommodation. In December 2004, the First Circuit Court of Appeals held that Costco was not required to excuse an employee from its appearance policy. The employee claimed she was a member of the "Church of Body Modification" and that she was required to display her facial jewelry at all times as part of her sincerely held religious beliefs. Costco attempted to accommodate the employee by allowing her to wear plastic retainers or cover the face jewelry with a bandage while at work. The employee rejected both ideas, stating that the only workable accommodation would be an exemption from the appearance policy. The Court held that requiring Costco to grant the employee the exemption would be an undue hardship because it would adversely affect Costco's public image.
In August 2005, however, a federal district court in Washington ruled in favor of an employee in a similar case. The employee, a food server, sought exemption from Red Robin Gourmet Burgers' policy banning visible tattoos. The employee had 1/4-inch wide tattoos encircling each wrist. The tattoos were written in Coptic and represented his belief in Kemetecism, a religion with roots in ancient Egypt. Red Robin asked the employee to cover his tattoos with wrist bands or bracelets. The employee refused, stating that intentionally covering his tattoos was a sin. The Court ruled that the case could go to trial on the issue of undue hardship. The Court stated that allowing the employee to show his tattoos may not be much of a hardship to the employer given that the employee worked for six months before being asked to cover his tattoos, no customers complained, and, unlike the "imminently visible" facial piercings in Costco, the tattoos were small and written in a little-known language.
The Costco and Red Robin cases leave open the question of how aggressively an employer may enforce its appearance policy in the face of a request for religious accommodation. One area that does appear settled is this: an employer need not allow an employee to show a tattoo that is offensive and harassing to others, even if the employee claims that the tattoo is part of his or her religious practices. In Swartzentruber v. Gunite Corp., a federal district court in Indiana ruled that an employer may prohibit an employee from displaying a tattoo of a hooded figure standing in front of a burning cross. The employee claimed he was a member of the American Knights of the Klu Klux Klan and that his employer was required to accommodate this religious practice by allowing the tattoo to be shown. The employer was willing to continue to employ the individual, but required that he keep the tattoo covered by his shirt. Ruling for the employer, the court stated that the tattoo violated the company's racial anti-harassment policy and was offensive to other employees, and that the employer's proposed accommodation was all that was required by law.
Employers wishing to enforce employee appearance expectations are advised to publish thorough, unambiguous appearance policies. Employers should promptly and consistently enforce such policies. If an employee claims that his or her appearance is part of a religious practice, the employer should consult with legal counsel to determine what, if any, accommodation is required.