Is it an ‘Undue Hardship’ to Allow Tattoos in the Workplace?

In yesterday’s Advisor, we covered legal issues related to tattoos in the workplace; today, more on hardship and tattoos, plus an introduction to the all-things-HR-in-one-place website, HR.BLR.com. Again, our advice comes from BLR Legal Editor, Jasmin Rojas, JD.

The U.S. Supreme Court has ruled that an undue hardship, in the context of an accommodation for religious belief, is one that would require an employer to bear “more than a de minimis cost.” This is a much easier standard for employers to meet than that required for a reasonable accommodation under the Americans with Disabilities Act (ADA). The ADA defines an “undue hardship” as one that would require “significant difficulty or expense.”

One Man’s Art Is Another Man’s Folly

What constitutes a hardship is still not clearly defined. At least one federal court has ruled that an employer did not have to provide the accommodation preferred by an employee because it created an undue hardship for the employer. In that case, the employee, who had a pierced eyebrow, was a cashier who frequently interacted with customers. She claimed that her religious belief required her to wear her body piercings.

The employer’s neutral dress code had been implemented to cultivate a “neat, clean, and professional image” —a business determination within the employer’s discretion, according to the court. The employee refused to accept any accommodation from the employer other than a complete exemption from the employer’s policy prohibiting facial jewelry.

The court reasoned that the exemption she demanded was an undue hardship because it would adversely affect the employer’s public image. The employer accommodated another cashier’s religious beliefs by allowing her to use clear plastic retainers in place of her eyebrow jewelry.

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On the other hand, a federal district court in Washington State ruled that an employee could proceed to trial with his claim that his employer’s requirement to cover his tattoos constituted religious discrimination. In that case, the employee claimed he had sincere religious beliefs that prevented him from covering up the tattoos.

Although the employer in this case claimed that allowing employees to show their tattoos would adversely affect its public image, the court noted that no customers had complained about any employees’ tattoos and that the size of the wrist tattoos in question suggested that few customers had noticed the tattoos. The court noted that this was in contrast to the facial piercings in the case described above because they were “imminently visible.” The employer subsequently agreed to settle the case.

Do You Really Want to Fight the Current?

History has demonstrated that fighting current trends may turn out to be a lost cause. The best practice for employers in this area is to base dress codes on objective criteria such as workplace safety and professional image and to be prepared to make reasonable accommodations for employees with dress and grooming-related requirements that do not adhere to the dress code, but that do not present health or safety concerns. Ultimately, decide whether your fear of tattoos is reasonable.

If your employees have no customer contact, a ban on tattoos may be too stifling. You may also want to decide whether you need an ultimate ban on all tattoos. Some employers have found success in implementing a policy where employees only have to conceal body art that is, for example, offensive or frightening to children. Finally, it is also advisable to include a statement in the employee handbook or written dress code reaffirming that the company will comply with applicable legal requirements to provide reasonable accommodation for employees’ religious beliefs.

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Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.

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E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.

Solicitation. In line with our general policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.

We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analyses of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)

You can examine the entire HR.BLR.com program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place and accessible at the click of a mouse.

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