National statistics suggest the economy is undergoing a slow, but steady uptick in hiring. As unemployment drops, employers are finding new challenges in hiring suitable workers. A recent article in The Wenatchee World indicated that some of our local agricultural employers may not be getting enough applicants to fill existing opportunities.
Then, when once an employee is hired, employers are confronted with new challenges in retaining and motivating the younger segments of the workforce, often referred to as “Gen Xers, Millennials, etc.”
One new challenge many employers face is interviewing and hiring individuals with facial piercings, such as nose rings, or tongue and eyebrow studs, or visible tattoos. Often times, the interviewer comes from a different background than the younger generation applicant, which leads to negative stereotypes that the applicant may be less than professional and not suited for the job.
A 2014 study, by researchers at Iowa State University, suggests that employers find applicants with facial piercings less suitable as compared to applicants without facial piercings because employers perceive those with facial piercings to be “less conscientious, less competent, less attractive, less sociable, less trustworthy, and to be of more questionable character than those without piercings.”
Despite an HR professional’s or interviewer’s personal reactions, “tattoo bias” or “piercing bias” can be a roadblock to hiring otherwise qualified individuals and can result in discriminatory (i.e. illegal) hiring decisions.
The general ground rules remain the same. Employers can have and enforce policies about piercings or tattoos that have a justifiable, legitimate and non-discriminatory business need. However, this can be a moving target.
As the “baby boomer” generation moves out of the workforce, society norms and expectations are evolving in seemingly radical new directions. Tattoos and facial piercings are coming more prevalent and accepted. While there are probably many positions that visible tattoos or nose rings, tongue studs and other facial piercings will never be acceptable, there are a growing number of positions where tattoos or other facial piercings are not an acceptable screening criteria.
The main legal issues related to facial piercings and tattoos arise in the areas of religious discrimination and workplace accommodation cases.
While an organization can establish dress codes limiting or prohibiting visible tattoos or facial piercing that are inconsistent with the employer’s values, customer relations, or image, the employer may still need to make a case-by-case determination if an accommodation is necessary because the facial piercings or visible tattoos are related to a religious reason or practice.
Generally, an employer must reasonably accommodate an applicant’s or employee’s sincerely held religious beliefs or practices, unless doing so poses an undue hardship on the employer. Sincerely held religious beliefs encompass a very broad spectrum of practices and beliefs, while establishing an undue hardship requires more than the interviewer not liking the facial piercings or visible tattoos.
For example, there is a Church of Body Modification, and one court has held that an employee’s facial piercings were part of the employee’s sincerely held religious beliefs.
To minimize potential legal issues, employers should consider crafting and consistently enforcing dress codes to avoid possible claims of favoritism or discrimination. Additionally, interviewers should carefully evaluate candidates based on job qualifications and strive to avoid making decisions about a person’s qualifications or character because of visible tattoos or facial piercings. In many cases, simple accommodations may be made by covering up the tattoos or piercing while in the workplace.
As the societal norms evolve and the job market tightens, employers should strive to recognize and adapt to cultural changes to hire and retain the best qualified individuals.
For assistance in drafting or evaluating dress codes or other workplace policies, employers should work with legal counsel.
Gil Sparks is Of-Counsel for Ogden Murphy Wallace, PLLC, and has over 26 years representing employers on employment and labor law matters and has over 16 years of senior human resources experience.