January 7, 2022 • By Dennis Beaver
May an employer require employees to cover up visible tattoos or remove piercings while on the job?
That was the question from “Sal” who manages a health and fitness spa in the Pacific Northwest. Frazzled, he called my office, explaining:
“After conducting several Zoom sessions for a receptionist, ‘Bonnie’ stood out as professional, personable and competent. During the in-person interview she was a home-run, with one of the most pleasant appearances and demeanor we’ve seen among applicants.
“She got the job, but needed one week to wrap up a number of personal matters, which we agreed to on the condition that she spend one day meeting our staff and being shown her duties.
“But when arriving for work for that one day, we could not believe our eyes!
Her short-sleeved shirt revealed large, vulgar, ugly tattoos! She had piercings in her lips and nose! It was as if a different person showed up! No one said a word; Bonnie left happy, saying she would be back in a week, ready to work.
“Her appearance is scary and completely out of character with our spa. Can we require that she cover up the tattoos and remove the piercings, and if she refuses, terminate her on the spot?”
I ran my reader’s question by friends of this column, Southern California-based employment attorney Jay Rosenlieb and Human Resources Consultant, Marinor Ifurung. Could Sal legally tell Bonnie, “You can’t come here dressed that way.”
Grooming and Appearance Policy – Available Before the Interview
Jay: In order to properly run your workplace and manage your risks, employers need to have a grooming and appearance policy. The latitude given an employee – what they can wear and their general appearance – is directly related to the type of business and specifically, if they are the face of that company to the public.
Marinor: Wellness spas, law firms, financial services, insurance, banking, health care – where that employee is the first-person customers and clients meet, you need someone who presents a professional appearance that fits the nature of the business. While tattoos are fine if you work at a tattoo shop, an employer can require that they be completely covered in many other settings, especially if they are contrary to a reasonably developed business image.
One way to address this often-confusing area is for employers to provide an appearance guide to applicants before the person arrives for an interview. This should also be on the company’s website and job postings.
Avoid Dealing with the Issue – See You in Court!
I asked Jay and Marinor, “There are a lot of employers who will run from confrontation. They just hate it – so what if they do, hoping that patience and giving employees, such as Bonnie, time to conform their appearance to that of co-workers does the trick, but it doesn’t and weeks have gone by?”
Jay: Time is your greatest enemy, for the longer employers permit unacceptable behaviors to continue, they are digging a hole for themselves, creating what we call an estoppel.
By not objecting to improper attire or other unacceptable behavior promptly -when you could have terminated them – instead, by letting it slide, your inaction action makes it acceptable in the employee’s mind, relying on your silence. Then, one day you blow up and fire that person. In so doing the employee has been handed the basis for a wrongful termination suit, which goes like this:
“You worked me off the clock and didn’t pay me overtime. I complained but you did nothing.” So, they are able to cloud the real issue – saying that the appearance issues were a mere pretext – all due to your silence.
Recommendations – Before and After Trouble
(a) For jobs where the employee is the public face of the company that has a professional image to preserve, you need to have an appearance and grooming policy in your handbook, on your website, on job postings and talk about it during the interview. Be sure applicants are informed of what is expected of them and attire that is not acceptable. Setting expectations early will avoid confusion and help prevent a more uncomfortable conversation in the future.
(b) With attire or any other issue that comes up, don’t delay! Go through the front door. Be direct. Tell the person that their appearance does not fit our professional environment. Do not beat around the bushes!
(c) Be aware that in some states and cities hair style based on ethnicity or race cannot be prohibited in the workplace. “The Crown Act” introduced in 2019, where passed into law, prohibits race-based discrimination against natural hair in the workplace and in public schools.
Both Jay and Marinor offered this final bit of advice for any employer facing an appearance issue:
“After setting out what about their appearance is not appropriate, ask for a promise to come back to work wearing clothing and groomed in a way that gives a similar kind of professional appearance as other employees.
“And make it clear that if they won’t comply, they need to find employment elsewhere. This way, the employee has been given an opportunity to improve.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.