Tag Archives: Discrimination

The Fight for Restroom Rights – Illinois Courts Follow National Trend in Prohibiting Sex Discrimination of Transgender Employees and Requiring Equal Access to Bathrooms

Contributed by Michael Wong, August 19, 2021

16306823 – 3d illustration of scales of justice and gavel on orange background

On August 13, 2021, the Illinois Second District Appellate Court upheld the Illinois Human Rights Commission’s determination that Hobby Lobby violated the Illinois Human Rights Act (IHRA) by refusing to allow a transgender employee to use the restroom that matched her gender identity and awarded $220,000 in emotional distress damages against Hobby Lobby.

In this case, Hobby Lobby’s policy was to limit employees and customers to using the restroom that matched their designated sex at birth. The plaintiff was born a male, but during her employment with Hobby Lobby transitioned to a female. She underwent medical treatment to transition and began using a female name and coming to work in feminine dress and makeup.  She also obtained a court order legally changing her name to her female name and obtained an Illinois drivers’ license and social security card which identified her by her female name and as being a female.

Hobby Lobby changed her personnel records and benefits information to reflect that the plaintiff was a female, rather than a male.  However, Hobby Lobby continued to refuse to allow her to use the women’s restroom.  When the plaintiff used the women’s restroom, Hobby Lobby disciplined her by issuing her a written warning and ordering other employees to report her if she tried using the women’s restroom. 

While the case was being litigated, Hobby Lobby did install a unisex restroom, and allowed employees and customers to use either the bathroom corresponding to their sex or the unisex bathroom. However, Hobby Lobby continued to prohibit the plaintiff from using the women’s restroom that matched her gender identity.

The court found that the IHRA’s definition of “sex” as “status of being male or female,” is not limited to an individual’s sex at birth or genitalia.  Rather, the use of the term “status” indicates a “state of being that may be subject to change.” The court further held that by defining “sex” broadly as a status, without any reference to anatomy, birth certificates, or genetics, the Act allows for the consideration of gender identity as one of the factors that may be used to determine sex.  Based on that reasoning, the court upheld the determination that Hobby Lobby’s actions had discriminated against the plaintiff based on her “sex,” as well as gender identity.

In making this finding the court rejected a number of arguments made by Hobby Lobby including that its bathroom ban was necessary to protect other women from the plaintiff.  While Hobby Lobby made assertions regarding a complaint by a women against the plaintiff for verbal disparagement and unwanted touching, such as side hugging and touches on the arm, back and leg, and alleged complaints by two female employees that they would feel uncomfortable with the plaintiff using the women’s restroom, the court held that Hobby Lobby failed to provide any evidence to support those assertions, such as discipline or written statements, or any evidence that the plaintiff’s use of the women’s restroom would pose a safety risk to other women. Indeed, the court held that if Hobby Lobby were employing someone who genuinely posed a safety threat to others, its employees and customers would certainly demand a more effective safeguard than preventing that person from using the restroom. The court further recognized that courts have firmly rejected the argument that the fears or discomfort of others may serve as adequate justification for a discrimination policy (i.e. the presence of a transgender person in a bathroom poses no greater inherent risk to privacy or safety than that posed by anyone else who uses the restroom).

While the court’s decision could be appealed and argued along the line of Hobby Lobby’s religious beliefs, the 2020 United States Supreme Court decision that transgender employees are protected from workplace discrimination and 2021 United States Supreme Court decision to decline to hear a case in which lower courts had upheld an employee’s right to use the restroom matching their gender identity would likely support the Appellate Court’s decision.

It is noteworthy that in upholding the Illinois Human Rights Commission’s award of $220,000 for emotional distress damages, the court also remanded the matter back to the Commission for a determination of any additional damages and attorneys’ fees that may be due – thus potentially increasing the plaintiff’s damage award.

This ruling makes clear to Illinois employers that the IHRA requires employees be allowed to use the restroom that matches their current gender identity.  Additionally, it makes clear that providing a unisex restroom does not excuse an employer from still allowing an employee to use other restrooms matching their current gender identity.

It also serves as a reminder to review and consider the following actions:

  • Revising anti-discrimination policies to make clear it prohibits discrimination based on sex, gender identity (including transgender and transitioning), and sexual orientation;
  • Ensuring dress code and restroom policies are not discriminatory;
  • Implementing procedures to address when an employee discloses they are transitioning or have a different gender identity, including changing an employee’s gender on personnel records and benefit information, maintaining confidentiality of personal medical information, recognition of different pronouns, and working with the employee on what, if any, communication is made to other employees regarding the employee’s transition or gender identity;
  • Ensuring that diversity and inclusion training addresses sex, gender identity (including transgender and transitioning), and sexual orientation.

To avoid potential missteps and pitfalls, it is advised that employers consult with experienced legal counsel in addressing these issues. 

States Mandating Companies’ Board Member Composition

Contributed by Noah A. Frank, May 9, 2019

In an effort to try and help root out discrimination, the Illinois legislature has followed California’s top-down approach of regulating the boardroom to ensure that decision makers include historically disenfranchised classes. 

black and white gavel

On March 29, 2019, the Illinois House sent HB 3394 to the Senate.  HB 3394 is modeled after California Corporations Code § 301.3, which requires publically held corporations (domestic and foreign corporations that list their outstanding shares on a major U.S. Stock Exchange), which state on their SEC Form 10-K that the principal executive offices are in California, to have at least one female board member by 12/31/2019 – with the number of female board members required increasing based on the board size. A corporation may also increase the number of directors on its board to comply. The Illinois bill is more expansive, as it requires at least one female director and one African American director on the board by 12/31/2020 (though the number of “designated seats” does not increase as board size increases). Much like the California law, publically held corporations whose principal executive offices are in Illinois may increase the number of directors on its board in order to comply with this proposed legislation. 

Sizeable Penalties

Illinois’s (prospective) and California’s laws apply to public companies whose principle executive offices are in that state, according to SEC Form 10-K. Both laws empower their respective Secretary of State (“SOS”) to adopt rules, as well as impose penalties of (i) $100,000 for failure to fill the designated seat(s) as required, (ii) $300,000 for a second or subsequent violation, and (iii) $100,000 for failure to file board member information. Each designated seat must be held “during at least one point of a calendar year” to avoid a violation (e.g., it would not be a violation if a board member left mid-year and was not contemporaneously replaced). Presumably Illinois SOS’s regulations will address: (a) the process for filing board composition information, and (b) whether an individual female, African American director satisfies both composition requirements (e.g., can one person fill both “designated seats”).

Precedent for a National Movement

Equal opportunity laws – such as ban-the-box, salary history inquiry bans, and harassment training mandates – have been sweeping the nation in a patchwork, making compliance much more difficult.  While California is currently the only state mandating board composition, New Jersey’s AB 4726 (introduced 11/26/2018) is pending, and others states have passed non-punitive resolutions encouraging female representation on boards, including Illinois (HR 439) and Massachusetts (Res. S 1007) in 2015, and Pennsylvania (HR 273) in 2017. Other than Illinois HB 3394, we are unaware of any other legislation mandating composition based on race or any other protected-class.

Will HB 3394 Become Law?

In 2018, overriding then-Governor Rauner’s veto, the Illinois General Assembly amended the Illinois Equal Pay Act to add African Americans to women as protected classes, effective 1/1/2019. (Note: Governor Rauner rejected the limitation of “African Americans” and suggested expanding the protection to race, color, national origin, and ancestry.) Governor Pritzker, along with the current General Assembly, have taken steps to enact legislation that protects employees and increases expectations and obligations for employers and businesses, ranging from increased minimum wage, wage and hour penalties, attacks on unfair competition agreements, and the like. Given this backdrop, it seems likely that Illinois will pass a board composition law, with the question being whether the current proposed language will be amended or changed. 

Is Compliance Limited to Public Companies?

Like many experiments, these laws typically first apply to public corporations that are, presumably, sophisticated enough to know, understand, and comply with their legal obligations. If successfully implemented, the requirements may be expanded to cover unlisted public companies, nonprofits, and large companies or employers.

Public companies that might be subject to these laws should start planning now, including considering topics such as board succession planning to identify qualified directors, and amending governing documents to permit increasing the board size to comply. Of course, qualified counsel should be consulted to avoid unforeseen pitfalls created by these untested laws.

The Cat’s Paw Theory Burns Another Employer

Contributed by Amanda Biondolino, April 4, 2017

The “Cat’s Paw Theory” in discrimination cases is based upon a fable in which a clever monkey tricks an unwitting cat to pull chestnuts from a fire, so that the monkey can make off with the chestnuts without burning himself. Courts have applied the “cat’s paw theory” to hold employers liable for discrimination where the decision maker was not biased or based the decision on discriminatory animus, but was influenced by a supervisor or co-worker who was biased or took actions based on discriminatory intent. Just as the unsuspecting cat is left nursing his burnt paws in the fable, an employer can be left nursing its bottom line, having incurred legal liability after being duped into doing someone else’s dirty work.

Workplace investigation

Businessman reviewing documents with magnifying glass

In Fisher v. Lufkin Indus., Inc., No. 15-40428, 2017 WL 562444 (5th Cir. 2017), the U.S. Court of Appeals for the Fifth Circuit recently applied the “Cat’s Paw Theory” to revive an employee’s retaliation claim, finding the employer violated federal law when it fired the employee for selling pornographic DVDs on company time. How is it possible that an employer can face legal liability for terminating an employee who undoubtedly engaged in offensive conduct?  The answer – the black employee was protected from unlawful retaliation for having complained a month prior that he was subjected to race discrimination by a white supervisor who called him “boy”, and the DVD sales were uncovered during a sting operation hatched by a disgruntled co-worker and supervisor who were upset with the employee for complaining about discrimination.

Spurned advances, differing politics, racial prejudices – the workplace is rife with potential powder kegs of animosity that make it difficult to know if your employees are legitimately bringing issues to your attention, or deliberately trying to sabotage a co-worker. Thus, when a company or HR department learns of a work rule violation, especially when it involves an employee who has made a complaint of discrimination, instead of immediately enforcing the rules and disciplining or terminating an employee, HR should make sure to conduct its own independent investigation or review of the alleged work rule violation. The reason for this is that an independent investigation or review can break the causal connection between the protected activity and the adverse employment action that allows the “cat’s paw theory” to be applied.

In the Fisher case, the court held the ad-hoc investigation was carried out by a biased co-worker and supervisor, and was undoubtedly motivated by a retaliatory animus. A prudent employer would not have been so quick to act on the findings of this sting operation, but would have stepped back and “investigated the investigation.” If it had done so, it would have likely discovered that ulterior motives were at play.  In the Fisher case, because the investigation would not have taken place but for the co-worker and supervisors’ desire to retaliate against the complaining employee, the investigative findings that could otherwise have justified termination were “inextricably tied” to the retaliatory animus, and were off limits to the employer.

What if the other employees did not undertake a sting operation, but simply “tipped-off” HR as to the complaining employee’s nefarious conduct?  Can HR undertake an investigation and discipline its employee if needed, or does the employee’s complaint of discrimination, regardless of merit, forever protect him or her from any adverse actions?  The answer is that an employer must be allowed to even handedly enforce its work rules.  As such, an employer should always conduct an independent investigation with neutral investigators entirely separate and distinct from any taint of the initial protected activity. Otherwise, you may just get burned.

Seventh Circuit Opinion Confirms Flexible Analysis of Adverse Employment Actions

Contributed by Allison Sues, November 9, 2016

On October 19, 2016, the United States Court of Appeals for the Seventh Circuit reversed a District Court’s Rule 12(b) (6) dismissal of two plaintiffs’ retaliation claims brought under Title VII and the Illinois Human Rights Act. In Volling and Springer v. Kurtz Paramedic Services, Inc., Case No. 15-3572, two Emergency Medical Technicians (EMTs) alleged that their employer and its new subcontractor refused to hire them because they had reported and/or supported claims of sex discrimination and sexual harassment against the employer’s previous subcontractor to the Equal Employment Opportunity Commission.

gavelbwThe new subcontractor filed a motion to dismiss, arguing that the plaintiffs had not stated a viable retaliatory failure-to-hire claim because the plaintiffs had not applied for the position that they claimed they were denied. The District Court dismissed the retaliation claims after referring to the prima facie case for a retaliatory failure to hire, which required the plaintiffs to allege that they applied for and were qualified for the position sought.

On review, the Seventh Circuit examined the circumstances under which the plaintiffs claimed to have been refused a position to determine whether they alleged an adverse employment action distinct from a straightforward failure-to-hire claim. In this case, the employer terminated its contract with the previous subcontractor following the plaintiffs’ reports of misconduct and replaced it with a new subcontractor. The employer informed all the EMTs who had worked with the previous subcontractor, with the exception of the two plaintiffs, on how to apply for unpublished vacancies with the new subcontractor. The new subcontractor hired all of these applicants. The plaintiffs never applied and were not hired. The Seventh Circuit reasoned that the plaintiffs alleged a discriminatory practice slightly different than a failure to hire – the failure to inform them of the vacancies where other employees who had not engaged in protected activity received notice of the positions. The Seventh Circuit stated, “plaintiffs’ failure to apply stemmed from the very discriminatory practice they complained of, and their failure to apply need not bar their retaliation claims.”

Employers should note that a court’s analysis of retaliation claims may be flexible and stretch outside confines of oft-repeated prima facie cases. Discrimination and retaliation claims can stem from not only a failure to hire an applicant because of his or her protected characteristic or prior protected activity, but also for any disparate treatment in the way employers publicize or recruit for the position prior to the hiring decision.

EEOC Enters Historic First Settlement in Sexual Orientation Case

Contributed by Carlos Arévalo, July 20, 2016

settlementBack on our March 8, 2016 blog, we reported about two new lawsuits filed by the EEOC based on sexual orientation. On June 28, 2016, the EEOC reached a historic first settlement on one of these lawsuits. In the case against Pallet Companies, doing business as IFCO Systems North America, the EEOC alleged that the company discriminated against a woman by terminating her for complaining about harassment associated with her sexual orientation. Yolanda Boone, a forklift driver at IFCO’s Baltimore plant, complained that her supervisor harassed her by repeatedly making comments about her sexual orientation. This included comments such as “I want to turn you back into a woman,” “I want you to like men again” and “you would look good in a dress.” Despite Boone’s complaints to management, the harassment continued. Following additional complaints to the general manager and HR, Boone was purportedly terminated.

While the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion, it does not explicitly include sexual orientation as a basis.  Nevertheless, the EEOC maintains that harassment based on sexual orientation is covered under the prohibition against discrimination based on sex. To date, no federal appeals court has issued a ruling adopting the EEOC’s approach to sexual discrimination claims involving sexual orientation.  However, cases are pending in the 2nd, 7th and 11th Circuits.

The settlement award includes $7,200 in back pay, $175,000 in damages to Boone, and $20,000 to the Human Rights Campaign, an LGBTQ advocacy group. As part of the settlement, IFCO will also retain an expert to develop workplace training addressing sexual orientation, gender identity and transgender issues in the workplace.

In light of the terms of the settlement, and as we suggested in our earlier blog, employers nation-wide should review and revise their EEO policies to ensure conformance with the EEOC’s enforcement strategy, even if their state does not already protect sexual orientation. Employers should also ensure that management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and how to address employee complaints relating to sexual orientation as the failure to do so could have severe legal and financial consequences.

New EEOC Lawsuits Are A Reminder To Ensure Anti-Discrimination Policies Apply To Sexual Orientation

Contributed by Steven Jados

On March 1, 2016, the EEOC announced that it had filed its first two sex discrimination lawsuits based on sexual orientation. One of these cases, filed in the federal district court for the Western District of Pennsylvania, is based on allegations that a gay male employee was subject to anti-gay epithets and other offensive comments about his sexuality and sex life that eventually drove the employee to resign. The other case, filed in the District of Maryland, Baltimore Division, is based on allegations that a lesbian employee’s supervisor made comments regarding the employee’s appearance and sexual orientation, and that she was fired shortly after complaining to her employer.

Discrimination 2Both of these lawsuits were brought under Title VII of the Civil Rights Act of 1964, on the theory that Title VII’s prohibition of sex discrimination encompasses sexual orientation. While the issue of whether Title VII can be enforced so broadly may still be subject to scrutiny and challenge, the EEOC has made it clear that it intends to use Title VII for sexual orientation claims—which means employers should expect to encounter more and more federal law claims based on sexual orientation discrimination and harassment.

With that in mind, we urge employers in states that do not have state-law anti-discrimination protections for sexual orientation to review and reassess their anti-discrimination policies and procedures—including all internal complaint mechanisms—to ensure they contain adequate protections against sexual orientation discrimination and harassment.  In this regard, it is critically important that all management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and to address employee complaints relating to sexual orientation.

Employers in states that already have sexual orientation discrimination protections should also take note of this EEOC litigation as it has the potential to increase employer exposure to legal liability. For example, in Illinois, the time limit for filing a state law-based sexual orientation discrimination charge is 180 days.  But because the deadline for filing an EEOC discrimination charge for alleged federal law violations is 300 days, the EEOC’s current enforcement strategy for sexual orientation claims extends the period during which employers could face such claims (albeit under federal law). Moreover, staying with the Illinois example, unlike the Illinois Human Rights Act (which contains the Illinois State law prohibition on sexual orientation discrimination), Title VII allows for punitive damages—which drastically increases the potential financial liability employers may face.

The bottom line is that employers nation-wide must update their policies, procedures, and day-to-day practices to conform with the EEOC’s current litigation and enforcement strategy as the failure to do so could have severe legal and financial consequences.

 

Eleventh Circuit Resurrects Transgender Mechanic’s Title VII Gender Discrimination Claim

Contributed by Suzanne Newcomb

Recently the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) reversed a District Court decision which dismissed a Title VII gender discrimination claim brought by an auto mechanic who is transgender, Chavez v. Credit Nation Auto Sales, LLC (11th Cir. Jan. 14, 2016). In reinstating the plaintiff’s claim, the Eleventh Circuit reaffirmed its earlier pronouncement that discrimination based on gender nonconformity is unlawful sex discrimination.

The employer claimed to have terminated the plaintiff for sleeping on the job. Because plaintiff admitted she fell asleep while on the clock, the District Court granted the employer’s motion for summary judgment finding there was no evidence of pretext and therefore, plaintiff could not   prove discrimination as a matter of law. The Court of Appeals disagreed.

DiscriminationDespite her admission, the Court of Appeals concluded that plaintiff presented sufficient evidence from which a jury could conclude that discriminatory intent was a motivating factor in the termination decision. Plaintiff presented evidence that the decision maker was nervous about her gender transition and its ramifications on the business, blamed plaintiff’s gender transition for another employee’s resignation, felt plaintiff’s gender transition would negatively impact his business, told plaintiff not to bring up the subject of her gender transition with other employees, and instructed her not to wear a dress or anything “outlandish.” This evidence, combined with testimony from another member of the management team that plaintiff was subjected to heightened scrutiny as the employer searched for a “legitimate” reason to terminate her employment, the Eleventh Circuit concluded, was enough to survive summary judgment on a mixed motive theory.

The decision reminds employers that while sexual orientation and gender identity are not protected classes under federal law per se (though several states and municipalities have added specific LGBT protections to their own anti-discrimination laws), Title VII has long been interpreted to prohibit employers from mandating that employees conform to gender-specific stereotypes and to prohibit discrimination against those employees who fail to adhere to such stereotypes.

As far back as 1989, in Price Waterhouse v. Hopkins, the U.S. Supreme Court made clear that Title VII prohibits discrimination based on an employee’s failure to conform to gender norms.  Evidence that the accounting firm insisted Hopkins conform to gender stereotypes – it was alleged that to increase her chance of making partner she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” — amounted to gender discrimination.

To avoid similar allegations, employers must be sensitive to the rights of all employees, even in jurisdictions in which sexual orientation and gender identity are not specifically articulated as protected classes under relevant law. Concern about the perceptions of customers or other employees does not justify disparate treatment against employees who fail to follow gender-specific social norms.

Help Wanted: ‘Seeking Fun Dude I Would Want To Have A Beer With’ And Other Things You Shouldn’t Advertise

Contributed by Noah A. Frank

The New Year is here!  Economic signs are trending up, and indicate that hiring will be picking up in 2016.  Because federal and state employment laws prohibit discriminatory job postings, and the administrative agencies are cracking down on both unintentional and intentional discrimination, care must be used to avoid drawing the attention of the government and other opportunist inquiries by simple “help wanted” posts.

What’s wrong with the ‘cool dude’ request?

It implies that the preferred candidate is: male, younger, a drinker, and has free time.  This discriminates against, at bare minimum, females (Title VII); older workers (Age Discrimination in Employment Act); recovering addicts (Americans with Disabilities Act); certain religions (also Title VII); and perhaps marital/family status (many state laws).  It could also imply quid pro quo sex discrimination – “if you spend time with me, you will get this job.”  All that from a fairly innocuous statement?  Yup.

EEOC guidance provides that it is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information.  Federal law also protects veteran status, arrest records, and use of credit/background checks.

State and local laws also protect these classes and add additional protected classes – such as marital status, number of children/dependents, medical history, ancestry, citizenship status, and even unfavorable discharge from the military.

Can I Never State a Preference?

It depends.  Some employment laws provide very limited exceptions for bona fide occupational qualifications.  These include the disability-related “direct threat” and the age-related need for a younger person (e.g., hiring an actor to play a child).  These limited exceptions rarely apply, and the employer has a significant burden to prove them.

On the other side, in certain narrow circumstances, laws permit advertising and/or intentionally recruiting traditionally marginalized protected classes.  This would include preferring to hire military veterans or qualified individuals with disabilities over other candidates.

What Can I Advertise?

Now Hiring SignGenerally, employers should advertise the essential functions of the job, as well as the knowledge, skills, and abilities a successful employee must possess.  For example, advertise that a “relevant bachelor’s degree from accredited college is required” (which indicates basic knowledge), but not “recent college graduate” (which implies younger candidates are sought).  Well drafted and accurate written job descriptions containing these requirements are given substantial weight by employment administrative agencies, especially when they exist prior to the beginning of the employment relationship.

Hopefully, 2016 brings cheer, prosperity, and increased hiring – without the headaches associated with the increasingly regulated employment atmosphere.

Can Employment Discrimination Plaintiffs Survive Summary Judgment?

Contributed by Julie Proscia and Steven Jados

The Seventh Circuit recently affirmed summary judgment for the employer in Miller v. St. Joseph County, a race discrimination case, and in doing so applied what may prove to be a streamlined standard for determining whether employment discrimination plaintiffs can survive summary judgment.

The plaintiff in Miller was a long-time employee of the county’s police department who sought several promotions which he did not receive. He alleged, among other things, that the promotion denials, a temporary assignment he disliked (but which did not change his compensation, benefits or rank), and the fact that he did not receive certain other promotions for which he apparently did not even apply, were all the result of race discrimination.

The court, while noting that it could not overrule the McDonnell Douglas burden-shifting method of proof, and its prima facie elements, instead applied a brief three-part test as a substitute for what the court called the “cumbersome” indirect and direct methods of proof. The three parts are: (1) membership in a protected class; (2) an adverse employment action; and (3) evidence from which “a rational jury could conclude that the employer took that adverse action on account of . . . protected class, not for any non-invidious reason.”

Applying that test, the court noted that there was no evidence of racial slurs or other manifest racial hostility; no evidence that the plaintiff was more qualified than the individuals hired into the positions plaintiff sought; and no evidence that race played a factor in the temporary assignment the plaintiff disliked. In short, the court looked at the evidence the plaintiff presented and saw nothing that could lead a rational jury to conclude that race discrimination occurred—and the court affirmed summary judgment in the employer’s favor as a result.

Now, what does this mean as a practical matter for human resources and management professionals?  It appears to signal the court’s interest in adjudicating discrimination cases on a common-sense basis.  That sounds simple, but whether it actually streamlines the litigation of discrimination cases—especially a case based heavily on circumstantial evidence—remains to be seen.

Tattoos, Facial Piercings, Ear Gauges? What’s an Employer to Do?

Contributed by Suzanne Newcomb

In the past, dress codes were straightforward. Depending on the nature of the business, they required a “neat, clean uniform” or perhaps “professional attire” and banned tube tops and flip flops. But as visible body art becomes more mainstream, many employers find themselves struggling to decide whether and where to draw the lines when drafting a personal appearance policy that works for their business.

As a starting point, body art itself is not a legally protected characteristic so bans are generally permissible. However, employers should be mindful that some tattoos, piercings, and other body adornments could have religious or cultural roots.  Accordingly, employers must ensure their policies do not adversely impact a particular ethnic or religious group and should take seriously requests to accommodate religious beliefs.

Back in 2004 a federal appeals court dismissed claims brought by a member of the Church of Body Modification finding that accommodating her multiple facial piercings imposed an undue hardship because it could adversely affect the employer’s public image. Since then, district courts have found that a restaurant employee who claimed covering his tattoo amounted to sacrilege; an employee who refused to remove her allegedly religious nose ring; and a Rastafarian who was moved to a non-customer contact position after refusing to cut his hair, all presented potentially viable claims warranting jury trials.

It is tough to say whether the tide is turning. Nevertheless, it is an issue many employers deal with on a regular basis.

Best practices for drafting an effective and workable personal appearance policy:

  1. Really think about what you will tolerate and why. Will you hire an employee with a visible tattoo? What if the tattoo is on her face? Might a total ban exclude applicants who would be a great asset for your business? Is there an alternative to a total ban that makes more sense? What about ear gauges and tunnels?
  2. Be prepared to justify the reasoning behind any bans or limits you decide are best for your business. Is the policy rooted in concern for the company’s public image? Fear of customer reaction? Safety or sanitation concerns?
  3. Consider whether the policy might look different for different segments of your workforce. One size fits all might not make the most sense here.
  4. Most importantly, as the cases referenced above demonstrate, employers must take claims for accommodation of religious beliefs seriously and engage in an interactive process to determine whether a workable accommodation exists if an employee or applicant claims conforming to the policy would infringe upon his religious beliefs.