“Here’s Looking at you, kid…” C. Grainger Pierce, Jr. 704/338-5321 gpierce@nexsenpruet.com

WHAT IF… A receptionist (who greets customers) shows up to work with… a nose ring; ear gauges; and visible tattoos?

Background Demographics: 24% between 18-50 have a tattoo 18-29: 36% 14% reported at least one body piercing Source: Journal of American Academy of Dermatology, June 2006 NC OSHA (NCGS sec. 95-151) precludes employers subject to the act from discriminating against employees on the basis of sex, race, ethnic origin, and religious affiliation.

Employer concerns if . . . Employer has legitimate interest in presenting workforce that is “reasonably professional in appearance.” Grooming / dress code standards are permitted BUT must be nondiscriminatory (e.g., sex, race, religion) Potential exception: Some gender-based differences (e.g., hair and earrings) Example of potential race-based discrimination in appearance policy: no facial hair allowed, but black employee suffers from pseudofolliculitis and not an undue hardship for employer to allow. Courts have held that grooming and appearance policies that apply different standards based on sex (e.g., hair length, jewelry, makeup, fingernails) are permissible and do not constitute sex-based discrimination. Courts may examine the relative burdens placed on each sex (e.g., men must have shorter hair, but women must wear makeup).

Navigating the Appearance Minefield Develop an appearance policy, and apply in a nondiscriminatory manner No bright line Tattoos on wrists? Eyebrow piercing? Case-by-case determination Tattoos on wrists: EEOC v. Red Robin Gourmet Burgers. - Employee told to cover tattoos on wrists. Employee said covering them was against his religion (Kemetic). - Red Robin refused accommodation, and terminated employee. - Court said accommodation should not have been undue hardship, because employee had been allowed to wear them for past six months, no customers had complained, and the tattoos were small. Eyebrow Piercing: Cloutier v. Costco - Employee wanted to wear eyebrow piercing as part of religion (Church of Body Modification) - Costco offered accommodation (cover with bandage or wear clear plastic retainer) - Employee refused (but had previously suggested such an accommodation) and was terminated - Court ruled in favor of Costco

WHAT IF… The tattooed employee is a member of the Church of Body Modification, and her piercings are a part of her “religion”?

What is a religion? EEOC “hands-off” approach: Sincere Occupy place in life parallel to place filled by God in traditional religions EEOC’s default: Assume request is based on sincerely held religious beliefs Note: Not required to identify specific religion to prove religious discrimination Xodus v. Wackenhut Case: Security guard refused to cut his dreadlocks because of his “beliefs.” He was a Rastafarian/Hebrew Israelite, but did not identify a specific religion in his interview. The court said this was not required.

Really… what is a religion? Do not question the validity or legitimacy of the religion unless objective basis exists. Courts dislike evaluating May inquire as to whether belief is sincerely held. Personal preference or “religious” belief? Courts dislike evaluating whether something is a religion or not. Example: Church of Body Modification. Court resolved case involving a professed member of the “church” and avoided resolving the issue of whether it was an actual “religion.” The top symbol is from the Church of Body Modification. The bottom ones are from the Church of the Flying Spaghetti Monster and Church of the SubGenius (both are parody religions – but where do you draw the line if sincerely held belief?). Example of personal preference: eyebrow piercing that does not relate to any religion, or any moral or ethical belief system that the EEOC might try to accept as a religion.

Reasonable Accommodation? Employers may be required to make reasonable accommodations Unless creates undue hardship Includes religious practices Undue Hardship? More than de minimis expense? Safety issue? Interfere with work? Note: Employer is not always required to accept the employee’s preferred method of accommodation. Example: Rather than allowing employee to wear a facial piercing, the employer may be permitted to accommodate by allowing the employee to cover with a flesh-colored bandage or wear a clear plastic spacer. Example of undue hardship: policy requiring employees to wear pants in manufacturing facility for safety reasons. Employer not required to allow employee to wear a skirt as a reasonable accommodation to employee who says wearing pants is against her religion. (EEOC v. Oak-Rite Manufacturing Corp.)

Possible reasonable accommodation for the receptionist who is a member of the Church of Body Modification? Band-aids Clear plastic retainers

WHAT IF… … The employee posts pictures of himself… … semi-nude, … in his work uniform?

At-Will Employment Can employer discipline? Yes. Unless discriminates on basis of protected category. E.g., allow men, but not women. Should employer discipline? Potential discrimination claims. Call attention to it in a sea of info. Fallout from discipline. Example of fallout: Case of Ellen Simonetti (“Queen of Sky” blog) - Worked as Delta flight attendant; blogged about her work but never identified employer - Posted some mildly suggestive photos of herself in uniform on plane (one picture is on slide) - Delta terminated her employment. - Simonetti sued Delta for discrimination. - News outlets everywhere covered the story (including even the BBC) - More targeted actions (e.g., telling Simonetti to remove the photos) may have accomplished more effective result.

C. Grainger Pierce, Jr. 704/338-5321 gpierce@nexsenpruet.com