Last month, a Sheriff’s Office in Ohio received national attention for terminating an officer who obtained a hand tattoo reading “PURE EVIL” in violation of the department’s policy. There, the Sheriff’s Office had a long-standing policy prohibiting any tattoos on an employee’s face, neck, and hands, as well as a policy requiring officers to promote a professional and neutral image on the job. The employer concluded the officer’s PURE EVIL hand tattoo was a permanent and ongoing policy violation, and the officer was unwilling to remove the tattoo. Ultimately, the officer’s employment was terminated. This situation has led both public and private sector employers to review and assess their appearance policies. The following blog will discuss the various components of an appearance policy as well as legal issues that may arise in the public and private sectors.

Appearance Policy Components

Both public and private sector employers are permitted to enact and enforce appearance policies for their workforce. Generally, appearance policies cover matters such as dress codes, grooming, facial jewelry and piercings, and visible tattoos. For facial jewelry and piercings, policies typically prohibit all facial piercings, with the exception of some ear piercings, and facial jewels and gems which are increasing in popularity. In terms of visible tattoos, employers typically prohibit tattoos on the face, neck, and hands, but generally permit non-offensive ankle, feet, or upper arm tattoos. These matters typically may be regulated in an appearance policy, so long as such policies are enforced in a non-discriminatory manner.

In fact, courts have consistently held that appearance policies are an important facet of business life, as it influences the public’s perception of a business or company. Therefore, reasonable appearance polices are regularly upheld.

Legal Considerations

While appearance policies are common-place and generally upheld, both public and private sector employers should be aware of the potential legal issues that may arise when having and enforcing an appearance policy.

        I.    Disparate Treatment

Both public and private sector employers can be held liable for discrimination, which may be demonstrated by evidence of disparate treatment. Disparate treatment occurs when an employer enforces a policy against one protected class, but not against another, and results in unequal employment conditions. Therefore, employers cannot use an appearance policy to target a specific employee or group of employees, while similarly not enforcing the policy against others. For instance, an employer may have an appearance policy which prohibits long hair extensions for safety purposes, but such a policy cannot be enforced only against Black employees, while simultaneously allowing white employees to wear the same without consequence.

        II.    First Amendment Rights

Courts have generally held that appearance policies which prohibit visible tattoos, that are content neutral and enforced in a non-discriminatory manner, do not violate an employee’s First Amendment rights to free speech or association. However, public employers should ensure that any appearance policy applied to visible tattoos, especially when applied to political tattoos, is consistently enforced across all employees.

        III.    Sex Discrimination

Following the Supreme Court’s decision in Bostock v. Clayton County (2020), both public and private employers should enforce any appearance policies in a non-discriminatory manner. While the decision did not squarely apply to dress code policies, many courts have interpreted Bostock to broadly apply to employer policies or practices which have sex-based distinctions.

In practice, this means that appearance policies must generally be sex neutral. For instance, an employer could have an appearance policy that prohibits fake nails, but that policy must be enforced against men and women in the same manner. More broadly speaking, an employer cannot enforce a policy which requires male employees to appear masculine, or which requires female employees to appear more feminine. Such policies would constitute sex discrimination, as they treat men and women differently on the basis of sex.

        IV.    Religious Discrimination

Employees in both the public and private sector may request a religious accommodation from an employer’s appearance policy. For instance, an employee may need an accommodation from an employer’s policy prohibiting hats or head scarfs when such garbs are worn for religious purposes. Alternatively, courts have upheld accommodations requests for accommodations from an employer’s no facial jewelry policy where such policies violate the employee’s religious beliefs. Such was the case in Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 130 (1st Cir. 2004) where the employee claimed Costco’s policy violated her religious beliefs and practices as a member of the Church of Body Modification, as the policy completely forbid the employee’s facial piercings. The court ultimately held in favor of Costco, but this is only because the employer did provide an accommodation to allow the employee to either cover her piercings with a band aid at work or put in a clear piercing piece. The court explained that a complete waiver of the employer’s no facial jewelry policy would constitute an undue hardship to the employer, but that some accommodation needed to be offered to the employee for her religious beliefs.

This case serves as a good example for when religious beliefs may come into place, and how employers may offer comprising accommodations to employees.

The attorneys at Fishel Downey regularly advise employers on issues related to employment policies and practices. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.