Is Prohibiting Tattooing or Body Art Religious Discrimination in the not-for-profit Workplace?
In response to several customer complaints, a female cashier working in a not-for-profit thrift shop was asked to remove her metallic eyebrow and lip adornments during work hours. Her supervisor reminded the employee that in order to maintain a business-like atmosphere, the organization's dress code prohibits facial jewelry (except earrings). The employee felt she should be exempt from the policy because, as a member of the Church of Body Modification, (www.uscobm.com) she is required to display her facial jewelry at all times. When she refused to remove or cover her facial jewelry on the job, she was fired for noncompliance with the policy. She subsequently filed a lawsuit alleging discrimination based on her religion.1
The prevalence of various forms of "body modification," such as visible tattoos and body piercings have caused some organizations to create policies that either prohibit or restrict the exhibition of body art in the work place. A legitimate business purpose for having such a policy is to require staff and volunteers to present a business-like appearance. Another legitimate reason could be to ensure the safety of employees or clients. However, some employees take offense at rules that prohibit "free expression" and argue that their body art is no more unprofessional or unsafe than some of the jewelry and clothing choices of their co-workers.
If based on a legitimate business reason, policies identifying appearance requirements (commonly called "dress codes" in employee handbooks) are not by themselves discriminatory. However, more and more plaintiffs are claiming that such policies are actually manifestations of their employers' discriminatory intentions. In a growing number of instances the enforcement of policies restricting body art has resulted in claims of employment discrimination. Therefore, employers need to be aware that enforcement of policies regarding body art might give rise to a claim of discrimination, whether based on disability, gender, age, race/national origin or religion.
Religion is one of several categories of prohibited discrimination under the Federal Civil Rights Act of 1964, commonly known as "Title VII" (www.eeoc.gov/policy/vii.html). Specifically, under Title VII of the Civil Rights Act of 1964:
Employers may not impose more or different work requirements on an employee because of that employee's religious beliefs or practices (or national origin or gender).
Additionally, almost all states have some form of anti-discrimination statute, most prohibiting discrimination on the basis of religion. Religious discrimination is prohibited in any aspect of employment, including recruitment, hiring, promotion, benefits, training, job duties, and termination. To comply with these laws, an employer must provide a reasonable accommodation for religious practices, unless doing so would result in undue hardship. Employers may not refuse a request for accommodation outright. Instead, employers should engage in a negotiation process with employees to find an accommodation that is appropriate and reasonable in any particular circumstance. The laws also prohibit retaliation against an individual because s/he has engaged in protected activity, which includes filing a charge of discrimination, testifying, assisting, or participating in any manner in an investigation of discrimination, or opposing a discriminatory practice.
Note that some tattoos are a response to medical conditions that cause facial scaring. Other tattoos are based on traditional ethnic customs. A dress code prohibiting visible tattoos cannot treat certain employees differently based on the reason for their tattoos. Examples: The dress code can't allow visible tattoos on males who have served in the military and disallow visible tattoos on females. If visible tattoos are unacceptable, the policy must apply to both genders. As long as the policy and consequences for noncompliance are applied equally to all, the not-for-profit is within its rights to disallow visible tattoos.
In the hypothetical described at the beginning of this article, the not-for-profit had a legitimate, business-related reason for restricting employees' body art. Additionally, the dress code was equally applicable to all employees, regardless of why they chose to modify their bodies with tattoos or other art.
However, when tattoos are a result of a religious reason, a different response by the not-for-profit is required: Employers must reasonably accommodate employees' sincerely held religious beliefs or practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion. Flexible scheduling to allow an employee time for prayer or to attend religious services, and modifying workplace practices, policies and/or procedures to permit employees to wear religiously important clothing (such as a turban or sari) are examples of how an employer might reasonably, and without undue hardship, accommodate an employee's religious beliefs.
Thus, as an accommodation a not-for-profit might request that an employee cover facial jewelry with bandages or visible tattoos with appropriate clothing while on the job.
An employer is not required to accommodate an employee's religious beliefs and practices if doing so would impose an undue hardship on the employers' legitimate business interests. An employer can show undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation. Most employers allow jewelry in the form of an ankh, cross, Star of David or other religious symbol. Lawsuits have been filed for religious discrimination involving the right to wear prescribed religious headwear (scarves, hijabs, turbans, kippas or yarmulkas, and bonnets) and other clothing.
The hypothetical case was based on an actual lawsuit against a for-profit retailer. Cloutier v. Costco Wholesale Corp, 311 F. Spp2nd 190, (D. Mass 2004). In the actual case the trial court held that the claim of religious discrimination was invalid. The court decided, for purposes of the legal argument, to accept that the "Church of Body Modification" was a bona fide religion, and that the employee was a sincere believer that practicing ancient body modification rites was essential to spirituality. However, the court found that CBM did not require a display of facial piercings at all times; thus covering facial piercings during work hours didn't infringe on the employee's beliefs anymore than covering tattoos by wearing a long-sleeved shirt would. The court ruled that the employer had fully satisfied its legal obligations to provide a religious accommodation and that the employee's claims were not actionable.
On appeal, the higher court affirmed the trial court's ruling and went further to hold that the employer had no duty to accommodate its sales employee's religious beliefs by exempting her from the organization's dress code, because to do so would impose an undue hardship on the employer.
Despite the holdings of the court in this case not-for-profit employers should be prepared to give serious thought to whether or not dress codes or other policies could be viewed as discriminatory and whether or not the organization should explore reasonable accommodations for the religious, or cultural practices of an employee. Employers should educate managers and supervisors that discrimination claims may result from enforcing dress codes and body art policies and that reasonable accommodations may be required. Employers should also weigh the benefits of denying or limiting body art against the risk of a potential claim of unlawful discrimination or the possible loss of a valuable employee who may not feel comfortable in a workplace where policies infringe on his or her religious expression.
1 Religion is just one category protected under state and federal anti-discrimination laws. Other protected categories include age, disability, gender, sexual orientation, race, color, national origin, military and marital status.