Tattoos, Piercings and Cross-Dressing, Oh My!

The HR Generalist

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Outrageous tattoos. Traditional religious clothing. Smoking. Cross-dressing and gender identity. Provocative dress. Sizism. Gender orientation.

Emerging Issues

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Tattoos once identified their owners as rough characters.

The stereotype was generally associated with bikers, sailors and marines.

Today, tattoos are mainstream. It is just as likely to find the 23 yo receptionist as the US Marine graduate with a tattoo.

Along with tattoos, body piercing has become more common.

Tattoos

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Tattoos among professionals are no longer unusual and industry trade groups estimate that 60% of all tattoos are being done on women.

When it comes to employment, however, pragmatism tempers social acceptance; 78% of younger employees state that they would cover or conceal their tattoos during a job interview.

Tattoos

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So, when does an employee’s bodily self-expression cross the line and allow us to order them to conceal their tattoos?

In some positions, the issue may never arise.

In other situations, the open display of a tattoo or a facial piercing may not be conducive to the message that we are trying to convey to the public.

Tattoos

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While there remains a great deal of discretion, more and more we need to be careful that our restrictions do not violate Title VII or, even create religious discrimination.

The EEOC has provided at least one set of guidelines for us to follow, however.

Tattoos

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Employee who was an adherent of Kemetic, an ancient Egyptian religion.

As part of his religious practice, he received tattoos and liturgical inscriptions on his wrists.

The inscriptions symbolized his religious dedication to his religious practices and it would be a “sin” to intentionally conceal the religious inscriptions.

Red Robin

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The employee had the tattoos on his wrist when he was hired and Red Robin has a dress code policy that prohibits employees from having “visible tattoos.”

He worked for 6 months, however, without any complaints.

A new manager saw the tattoos and fired him.

Red Robin

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The employee asked for a dress code accommodation and was refused.

Red Robin argued that allowing the tattoos would undermine their “wholesome image.”

The District Court rejected Red Robin’s argument and the case was settled out of court.

Red Robin

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2 lessons from the case:◦ Title VII requires us to make “reasonable

accommodations” to sincerely held religious beliefs unless it will cause undue hardship. The EEOC takes a broad view of religious beliefs and accommodation.

◦ The courts do not want to be placed in the situation of deciding what is or is not a bona fide religion or religious practice.

Red Robin

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The same legal standard may apply to the related issue of body piercings or body art.

Body Piercings

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Employee worked in the front end at the retailer.

When she was hired, she had 11 ear piercings but did not claim any religious significance to them.

She later claimed membership in the Church of Bodily Modification (CBM).

Body modification includes piercing, branding, cutting, scarification and tattooing.

Cloutier v. Costco

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She later had her eyebrow pierced even though Costco forbids the wearing of facial jewelry.

Costco proposed an accommodation by allowing her to wear clear plastic retainers in her piercings during work hours but she refused.

She was ultimately terminated.

Cloutier v. Costco

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As we previously stated, the court dodged the question as to whether CBM is a bona fide religion and focused on Costco’s attempt at accommodation and awarded summary judgment.

The appeals court took a different tack and held that her demand for a blanket exemption from the dress code policy was an “undue hardship.”

Cloutier v. Costco

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We should avoid overly broad dress codes or similar policies that do not recognize the need for an accommodation.

Religious tattoos or piercings may be subject to accommodation; secular or purely decorative ones do not need to be accommodated.

Lessons

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Tattoos or piercings of a sexual nature or with racist symbols or images may clearly be prohibited and employees made to cover them up.

There is actually a whole industry of specialized clothing and make-up designed to conceal tattoos in the workplace.

Lessons

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In our society, trousers have been adopted by women and is not regarded as problematic.

In cultures where men have traditionally worn skirt like garments, the kilt or sarong is not seen as problematic.

Dress, then, is a social construct. However, women dressing in men’s clothing

and men dressing as a women, receive very different responses.

Gender Identity

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The notion of gender identity appeared in the Diagnostic and Statistical Manual of Mental Disorders, DSM-III, in the form of two psychiatric diagnoses of gender dysphoria: ◦ Gender identity disorder of childhood ◦ Transsexualism

Gender Identity

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“Gender identity" is understood to refer to each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the person's sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other experience of gender, including dress, speech and mannerism.

Gender Identity

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Gender identity and related topics are constantly debated within politics.

Recently, it was decided under the Affordable Care Act that health insurance exchange's will have the ability to collect demographics regarding gender identity and sexual identity within the effected populations.

The questions will be optional, but will help policymakers better recognize the needs of the LGBT community, and prove that the goal is to provide insurance for everyone.

The questions are legal, and federal policies promise that nobody will be discriminated against.

Gender Identity

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Executive Order 13087◦ Signed 1998◦ Prohibits discrimination on the basis of sexual

orientation for federal workers, selected civilian members of the military, postal workers and others.

◦ Does not apply to the private workplace but it allows the EEOC to “set the stage” for later action.

EEOC and Gender Identity

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New Strategic Enforcement Plan:◦ Eliminating barriers in recruitment and hiring.

Target class based recruitment and hiring practices that steer individuals into specific jobs based on their status in a particular group.

◦ Protecting immigrant, migrant and other vulnerable workers. Target disparate pay, job segregation, harassment,

trafficking and discriminatory practices affecting workers who may be unaware of their rights or reluctant or unable to exercise them.

More Aggressive EEOC

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Addressing emerging and developing issues.◦ The Americans with Disabilities Act◦ Accommodating pregnancy related limitation

under Title VII and the ADA◦ Coverage of lesbian, gay and transgendered

individuals under Title VII Enforcing equal pay laws.

◦ Target pay discrimination based on gender by encouraging the use of directed investigations and commission charges.

More Aggressive EEOC

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Preserving access to the legal system.◦ Target policies and practices that discourage

individuals from exercising their rights. Include retaliation against complaining employees, overly broad waivers required by employers, settlement provisions that prohibit filing charges.

Preventing harassment.◦ Pursue systemic investigations and litigation and

conduct an outreach campaign to deter harassment in the workplace.

More Aggressive EEOC

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EEOC Plans to litigate more cases, particularly systemic cases where company wide hiring or other practices have an illegal discriminatory impact on certain protected classes, even if not intentional.

Obtained $36.2 million in settlements from systemic investigations in 2012 versus $8.6 million in 2011.

$372.1 million in monetary relief for charging parties in 2013.

More Aggressive EEOC

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Systemic cases can be triggered by the use of screening tools that might have an adverse impact on certain employees.

Pre-employment tests, background checks and date of birth questions on employment applications will draw EEOC attention.

EEOC is asking for large data sets of statistics to show potential systemic discrimination.

More Aggressive EEOC

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8/27/13, OFCCP announces new regulations requiring federal contractors to establish annual hiring benchmarks for disabled individuals and protected veterans.

Establishes a 7% utilization goal for each Job Group or the entire workforce if over 100 employees.

More Aggressive EEOC

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Data Collection-document and update annually # of individuals with disabilities and protected veterans who apply for jobs and the # hired.

Invitation to self-identify-at both pre-offer and post-offer.

Records access requirements-available to OFCCP.

More Aggressive EEOC

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Religious discrimination spotlight.◦ Evangelical Christians-employee refuses to submit

to biometric hand scan, claiming a “relationship between hand-scanning technology and the Mark of the Beast” from revelations.

◦ Seventh Day Adventists-the Sabbath is from sundown Friday to sundown Saturday

◦ Pentacostals-female employee who religious beliefs forbids her to wear pants, a violation of the dress code. Fired for wearing a skirt.

More Aggressive EEOC

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Currently, 1 state (Michigan) and 6 cities outlaw weight and height discrimination in employment. (Massachusetts is next)

The AMA has declared obesity a disease. The EEOC is taking the position that obesity

is a “qualified disability” under the ADA. “Appearance” bias or “lookism.”

Emerging Issues

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60% of overweight women and 40% of overweight men suffered discrimination.◦ Handsome men earn 5% more◦ Attractive women earn 4% more◦ 3% of women have already had cosmetic

procedure to increase their perceived value in the workplace.

Emerging Issues

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Long term unemployed (those out of work for more than 1 year) suffer discrimination in employment.

New York City, New Jersey and other states have pass legislation making them a “protected category” under their regulations.

Prohibits using unemployed status in any employment decisions.

Emerging Issues

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Federal Appeals Court in Chicago◦ “Employers must assign a qualified employee

with a disability to a vacant job for which the employee is qualified, even if better qualified applicants for that vacant job exist. 10/12.

◦ Supreme Court decision ruled that reasonable accommodation under the ADA sometimes requires employers to give preferential treatment to disabled employees.

◦ “disability neutral” policies sometimes fall short of what the ADA requires.

Emerging Issues

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Supreme Court Decisions

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Vance v. Ball State◦ Vance, an African American employee argues that

her co-worker had the authority to direct her work and was, therefore, a supervisor.

◦ Ellerth/Farragher framework. Employers strictly liable for supervisor harassment.

◦ The Court narrowed the term “supervisor” to include the power to make “a significant change in employment status…”

Assessing Supervisor Liability

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Nassar v. UT Southwestern.◦ Doctor alleged that he was denied employment

after complaining about discrimination.◦ University stated that it would not have hired him

anyway since they required that all doctors be members of the university faculty.

◦ The Court held that in retaliation claims, the employee needs to show that the employer would not have taken the adverse action “but for” the retaliatory move.

Title VII Retaliation Claims

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US v. Windsor.◦ The Court ruled unconstitutional a law denying

federal recognition of legally married same sex couples.

◦ Struck down Section 3 of DOMA holding that it violated the equal protection component of the 5th Amendment’s Due Process Clause.

◦ If you have multiple state operations, deal with what a state considers a “spouse.”

DOMA Struck Down

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Ruling changes administration of FMLA◦ Under FMLA, employers must provide employees

time off to care for their spouse.

DOMA Struck Down

Employer’s State

Employee State of Residence

“Spouse” for FMLA Purposes

Same Sex Same Sex Yes

Same Sex Non-Same Sex No

Non-Same Sex Same Sex Yes

Non-Same Sex Non-Same Sex No

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Legislation

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Fair Credit Reporting Act◦ Consumer Financial Protection Bureau updated

the Summary of Rights and Notice. Replace old forms with new ones.

Department of Labor-FMLA◦ New FMLA poster

Must be displayed where employees and applicants can see it.

Must be displayed even if there are no eligible employees.

Federal Legislative Activity

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Employers granted one year extension of ACA penalties.◦ Penalties for not providing “affordable” health

care delayed to January 2015. Marketplace Notice to employees of

coverage options.◦ Required to provide employees with written notice

of availability of exchanges.◦ Must be in writing, by first class mail or

electronically.◦ No penalty for non-compliance.

Affordable Care Act

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Employment Non-Discrimination Act◦ ENDA amend Title VII to prohibit employees on

the basis of sexual orientation or gender identify.◦ Passed out of committee, full Senate vote this

week. DOL Right to Know Law

◦ Require employers to provide justification for classifying workers as either employees or independent contractors.

◦ Public Comment period, first step.

Legislation to Watch

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Comp Time Legislation. Extends compensatory time benefit to private employers in the same manner as public employees.◦ Up to 160 hours per year◦ Allows a ‘cash out’ arrangement◦ Use comp time within a ‘reasonable time period’

Legislation to Watch

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Questions/Comments?