THE LAW: Tattoos, piercings & hair color in workplace

The battle to attract and retain workers has led many employers to adjust long-standing workplace policies, including allowing hybrid and remote work and relaxing college degree requirements.

Another policy is also changing: visible display of tattoos and piercings on workers. Companies, including Disney, UPS, and Home Depot, have relaxed their dress and style codes.

The Disney Co., for example, recently changed its policy on tattoos. Disney’s goal is to create a magical, fantasy experience for their guests and thus it has maintained very strict rules for cast members’ appearances.

Now, cast members are allowed to have tattoos up to a size that can be covered by their own extended hands. For larger tattoos on the arm or leg, employees can wear matching fabric tattoo sleeves. In addition, tattoos cannot have offensive material, nudity, foul language, etc.

Some employers, including UPS, also disallow tattoos on employee hands, head, neck, or face.

Such changes were made to turn the companies into more inclusive places for their employees, as freedom of expression and acceptance of all have become a large and pressing issue in the last few years. Disney said it was updating its policies to not only remain relevant in today’s workplace but also enable their employees to better express their cultures and individuality at work.

Generational

Problems often arose historically because hiring managers typically are from an older generation when tattoos were limited to Marines, bikers and gypsies. Non-earlobe piercings were almost nonexistent.

While many employees (mostly women) dyed their hair, it was likely not purple or green.

However, times are changing.

Nowadays, many workers belong to the “modified community.” One study estimated that nearly 50 percent of adults ages 18 to 40 now have a tattoo or non-earlobe piercing. In contrast, in 1990, only 3 percent of the U.S. population had tattoos.

What is an employer to do?

Matter of appearance

First, do you even care? Does one’s appearance have any connection to their ability to perform the job? Are you worried about customer reaction?

One recent study by the Journal of Organizational Behavior concluded that visible tattoos did not negatively impact some white-collar jobs or a customer’s attitude or purchasing behaviors. In fact, customers who stereotyped tattooed employees as being artistic were more likely to view the company in a positive light.

Accordingly, employers should focus on merit-based work. If the applicant or employee can do the job, what does it matter if someone is wearing a tattoo? To ensure that a company is attracting the greatest number of talented potential hires, the employer should consider having a more open tattoo policy.

The safest thing to do is simply write an employment policy on it. This has created a firestorm of activity to create personal appearance policies that include rules about tattoos, piercings and unnatural hair.

But, again, as many employers and employment attorneys will tell you, it's not that easy without discriminating against certain classes of workers and without significantly reducing the size of the talent pool. Many employers simply choose a policy that requires employees to cover tattoos on the job and apply it consistently to all employees.

Applying equally

Despite all the talk from H.R. and management about the alleged unprofessional appearance of candidates, it appears around 36 percent of organizations surveyed by the Society of Human Resource Management had a policy for body piercing and 22 percent had policies for body art. That compares to 97 percent of organizations that maintained policies on clothing and 70 percent on footwear.

Iowa job candidates and employees often feel an employer has no right to restrict the display of piercings and tattoos and their hair color. That's not true.

Companies can limit employees' personal expression on the job as long as restrictions aren’t discriminatorily applied or create a disparate impact on some protected class persons.

According to the Equal Employment Opportunity Commission, employers are allowed to impose dress codes and appearance policies as long as they don't discriminate against a person's race, color, religion, age, national origin, sexual orientation or gender. Companies faced with inked and pierced applicants can demand eyebrow rings or tongue rings be removed and tattoos covered to help project the proper image to customers.

But be careful.

Forbidding any type of “corn rows” for hair, for example, may have a disparate impact on African Americans.

And let's say you deem it OK for a female employee to have a maximum of two visible piercings, limited to the ear. However, you forbid male employees from wearing even one earring. Does this open up the employer to gender discrimination? And what if an applicant’s nose piercing is a religious tradition? Does this exempt the employee from the policy?

Avoid bias

To avoid litigation, employers should prove that any policy is job-relevant and not driven by personal preference or bias.

Those who disapprove of inked-up and pierced workers with green hair simply must learn to accept those who are willing to follow company guidelines and perform their jobs. Employees that have body art may have to cover up their tattoos and jewelry during work hours, if requested.

Finally, think ahead 10 years.

As the younger tattooed and pierced employees age, move into management and start running more companies, views likely will change. Like long hair for men and mandatory skirts and stockings for women, tattoos and piercing policies will likely one day become relics.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com