When R. Brent Ballow's son told him he was getting a tattoo, the employment law expert gave some unsolicited professional advice: Get it someplace where it doesn't show.
Just how far can employers go in acting against workers based on professional image alone? In this week's webinar, "Addressing Tattoos, Piercings, and Cross-Dressing in the Workplace," Ballow discussed some of the risks of taking adverse employment action based on a worker's appearance.
Legal issues related to employee lifestyle are rapidly changing. Ballow, who has more than 20 years of experience in labor and employee relations, says that lifestyle discrimination suits are catching many employers off-guard.
Ballow, co-owner of Nashville's Avant Resources, advises businesses on a range of thorny labor and employment issues, including how to address self-expression in the workplace.
He stressed to participants that employers are free to set their own workplace appearance standards. But where businesses stumble, he says, is by either not having a policy in place that clearly sets out expectations or by having personal appearance policies that are poorly drafted or inconsistently applied.
Lifestyle choices per se aren't subject to Title VII, which prohibits discrimination based on race, color, religion, sex, and national origin. But lifestyle discrimination can nonetheless run afoul of the law. Dress codes, for example, can violate Title VII's prohibition of discrimination based on national origin. And appearance policies that are applied differently to men than they are to women can trigger sex-discrimination claims.
"A lot of plaintiffs attorneys are trying to stick these nontraditional claims into other categories," he says. For employers, discriminating against workers based on their appearance can result in costly litigation and even bad press.
Attitudes about employee lifestyle differences vary widely, as do notions of the relationship between worker competencies and their outward appearance. Ballow acknowledges that when considering tattoos and piercings in particular, what's viewed as "excessive" is largely a generational issue.
Webinar participants were primarily lawyers and human resource professionals, representing employers ranging from government entities to hospitals. Fifty-eight percent of participants indicated that employees at their companies had "excessive" tattoos or piercings. However, only 19 percent of all respondents indicated that they had taken adverse action against an employee because of excessive tattoos or piercings.
In the past few years, lawyers have struggled alongside the courts and federal agencies, including the U.S. Equal Employment Opportunity Commission, to keep up with evolving social norms. "This is a developing area," says Ballow, adding that there has been a lot of inconsistency in the outcome of lawsuits in recent years.