Know The Law: Servers Baring Tattoos and Piercings

December 27, 2012

Q: I own a chain of restaurants throughout New Hampshire and have recently received numerous complaints about my servers baring tattoos and piercings. Is it legal for me to have a policy that my servers keep tattoos and piercings hidden?

A. Employees with tattoos and piercings are becoming more common than ever in almost all industries, from the manufacturing plant to the boardroom. Because of this, employers are struggling to balance their employees’ freedom of expression with legitimate business concerns.

Employers may restrict employees from showing tattoos and piercings, but there are certain limitations on doing so. First, employers who wish to implement such restrictions should have a clear, written dress code addressing tattoos and piercings. Employers should also implement a policy that takes into account why they are concerned about having employees with visible tattoos and piercings. For example, a restaurant owner may want to limit visible tattoos and piercings for servers because they are the main point of contact with customers. However, a restaurant may decide not to similarly limit tattoos and piercings for kitchen staff because they typically never meet with customers.

In any case, an employer should restrict visible tattoos that may be considered offensive and include this restriction in both its dress code and harassment policy. Offensive tattoos that are allowed in the workplace could open up an employer to a claim of sexual harassment. To avoid such a claim, employers should ensure they have a comprehensive harassment policy stating that offensive tattoos will not be allowed, ensure that this restriction is enforced routinely and applied equally to all employees, and train supervisors and managers in the implementation of the policy.

Finally, employers should be aware that they may have to allow for exceptions to any restrictions on visible tattoos or piercings for religious purposes, and they should include this exception in the written dress code. Where a tattoo or piercing is reflective of a religious belief, employers must accommodate that belief unless doing so would impose undue hardship on the employer. Therefore, if a tattooed or pierced employee raises a legitimate religious belief when objecting to an employer’s dress code, employers must focus on their business needs to determine if they can make a religious accommodation without undue hardship, rather than focusing on whether or not they agree with the religious belief.

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Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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