Eichenlaub, Richard HRMN 362 The article I have chosen is Tattoos and Body Piercings: New Terrain for Employers and Courts by Jon D. Bible. It can be found in the fall 2010 Labor Law Journal Volume 61 issue 3 pages 109-122. The author is a professor of business at the College of Business Administration at Texas State University. Based on his background, I expect the author’s presentation to be fair and unbiased. The introduction starts by discussing the possible negative effect of employees’ tattoos and piercings could have on business and the stances an employer may take on the issue.
The article will focus on employer actions in taking a limiting stance on tattoos and piercing, employee defenses for defying employer on this subject, and the developments in litigation on the subject. The next section discussed decisions against the plaintiffs starting with four cases based on constitutional claims. The first case discussed is Riggs vs. City of Fort Worth, decided by a federal district court in 2002. In this case Riggs a police officer assigned to a bicycle unit was order by the Chief of Police wear long-sleeved shirts and long pants to cover his tattoos.
Riggs’ tattoos included a Celtic tribal band, a Celtic design with his wife’s name, a mermaid, his family crest, the cartoon character Jessica Rabbit, and a 2′ X 2′ full-color depiction of St. Michael spearing Satan. Riggs was of Celtic descent and claimed he was being singled out because of his race, national origin, sex, and statements of expression, and denied his equal protection rights because the 15 other tattooed officers in the department were not subject to the same clothing requirement.
He also claimed the order was in retaliation for towing the mayor’s car, which occurred 27 days before the order. The court decided against the plaintiff on both counts. The discrimination claim was denied because some of the other officers not required the same dress code were white and male. He also offered no evidence to the national origin of the other officers or that the chief made his decision based on Riggs’ Celtic descent. Court found that his tattoos were not protected under his first amendment rights. His claim of retaliation also lacked evidence other than proximity in time.
The next the author cited an unpublished opinion in Montoya vs. Giusto by a federal magistrate in Oregon. In this case, the plaintiffs, two county deputies, discharged after an investigation of an incident involving another officer’s use of force during booking an inmate. Among other claims, the plaintiffs claimed the discharge had to do with a tattoo they wore that read “Brotherhood of the Strong,” which was connected to a group of abusive prison guards in Hawaii, where the plaintiffs had once worked. The court rule there was no evidence the tattoos motivated the discharge.
Furthermore, even if they had been a factor in the termination, right to privacy and the first amendment did not apply to plaintiffs’ decision to wear the tattoo. The fourth was a 2005 decision by a federal court in Connecticut where the chief of police ordered several of his officers to cover spider-wed tattoos after he learned they commonly symbolized race hatred. Even though the officers were unaware of the meaning, the court found first amendment rights did not apply and there was no evidence of discrimination. All charges were dismissed.
Next the author addressed two decisions against the plaintiffs relating to religious claims. First, Swatzentruber vs. Gunite Corp. , a 2000 Indiana court decision involved a Ku Klux Kan member with a tattoo of a burning cross and hooded figures was ordered to cover his tattoo after complaints from other employees. He sued on the bases of religious discrimination. To establish prima facie for discrimination case, he must show he has a sincere religious belief; he told the employer about the conflict with an employer’s requirement; and the practice was the reason for an adverse employer action.
If these are proven, the employer must make reasonable accommodation unless it would cause an undue hardship on the employers business. The court found Swatzentruber fail to prove covering the tattoo conflicted with his belief and never told the employer about the conflict. Furthermore, the court concluded not covering the tattoo would cause undue hardship on the employer because it would create a hostile work environment. The next case, a 2005 first circuit court of appeals Cloutier vs. Costco, turned to body piercing discrimination. In this case, Cloutier, a cashier, got an eyebrow piercing after being hired.
During the same time, Costco changed their dress code to prohibit all facial piercing. Cloutier was a member of the Church of Body Modification (CBM) and filed a complaint with the Equal Employment Opportunity Commission (EEOC) covering or removing her piercing was against her religion. She was fired after the company refused her accommodation request and she accrued several unexcused absences due to failure to comply with the dress code. In the EEOC mediation, EEOC ruled in her favor finding the conflict was religiously based and it would not cause undue hardship on the company.
The court on the other hand, found an accommodation to cover her eyebrow piercing was reasonable because she did not object to wear a blouse that covered the tattoos on her torso. The appeals court up held the ruling stating not covering the piercing could cause undue hardship to the company in the way of potential lost sales due. The author next addressed the only decision, up to the writing of the article, favoring the plaintiff, a 2005 unpublished decision by a federal district court in Washington in the case of EEOC vs. Red Robin Gourmet Burger, Inc.
In this case, the employee had tattoos encircling his wrist less a quarter inch wide that he received in a religious ceremony. The court in a summary judgment concluded the employee demonstrated a bona fide religious belief that covering his tattoos was wrong. Additional, there was no undue hardship to the employer because he had worked for 6 months without any customer complains. The author notes, even with questionable precedential weight because it was an unpublished decision, this decision was important because it takes a stance directly opposite the previous cases on several issues.
In his final main point, the author addresses two developments that have occurred since these cases were decided. First was a 2006 Supreme Court decision that limited the First Amendment right for government employees so that tattoos and piercing would rarely be protected under freedom of speech. Second was an EEOC compliance manual released in 2008 to help employers deal with religious issues that could arise in a workplace. The EEOC Compliance Manual does not set new law or modify policies; it merely consolidates case law and EEOC’s policies regarding religious in one document.
The author conclude any attempt to challenge an employer’s request to cover a tattoo or piercing in the courts will have a hard pressed time to proving a cases although it is not impossible. He also highlighted the need for employer to have a clear and comprehensive dress code that addresses tattoo and piercing policies their employees can refer to when dealing with the issue. I believe the author presented a very informative and unbiased presentation.
He presented not only problems challenging employer orders to cover tattoos and piecing but some promising successes. By addressing at least six decisions on the matter, I believe he adequately supported his conclusion. His information was well organized and the article flowed well from point to point. I can see both the employer’s and employee’s side of the argument. I believe, when it comes to a bona fide religious objection to the covering of a non-offense tattoo, it should be allowed to remain uncovered.
In all other cases, I side with the employer’s right to control the image of the company. I believe we all have make scarifies to maintain employment whether through time spent away from loved ones or wearing a certain type of clothing to work. The covering of a tattoo is an extension of the dress code just like wearing a hairnet or business-casual clothes. References Jon D. , B. (2010). Tattoos and Body Piercings: New Terrain for Employers and Courts. Labor Law Journal, 61(3), 109-122. Retrieved from http://hr. cch. com/products/ProductID-632. asp