Click here to enlarge imageby Bent Ericksen and Tim Twigg
Wherever you shop these days you see employees displaying the latest in body art - jewelry, tattoos, and body piercings. From the number of articles written and lawsuits filed, this is becoming a significant challenge for employers, and it shows no signs of subsiding.
Some natural and understandable employer concerns that arise more and more often are:
- What constitutes professional attire?
- How will this be perceived by my patients?
- Will there be concerns about the quality of our care?
- What, if anything, can I do about it?
In the employment arena, this impacts the hiring process and staff management. In one survey, 69 percent of employers admitted to being influenced by obvious tattoos on a job candidate, with 72 percent stating that body piercings had an even greater influence.
So how do you respond when an applicant reports for an interview wearing what you consider to be unacceptable body art? Can you reject the applicant as a poor fit for your practice on that basis alone?
And how do you react when a staff member shows up for work with a brand new nose ring or what you consider to be an unacceptable appearance? Can you tell the employee to remove the nose ring or otherwise change his or her appearance?
In one recent Court of Appeals decision, a company’s interest in fostering a conservative business image trumped an employee’s right to wear an eyebrow ring under a local ordinance that prohibited discrimination based on personal appearance. It should be noted that other courts have agreed.
When addressing issues of professional appearance and/or attire, here are a few considerations:
In general, employers may have a right to reject an applicant and/or require that existing employees remove or cover up unacceptable body displays.While this is true in most cases, there are some limitations. For example, employers may be asked to prove that they desire to portray a conservative public image and that any request for an exception will be considered in a nondiscriminatory manner and will apply to all employees.You should have a written appearance and dress code policy.
Relative to an appearance and dress code policy, most dentists require that staff members wear uniforms or otherwise look “appropriate and professional” on the job. Since employees may have different interpretations about what that really means, define what you mean by “proper,” “appropriate,” and “professional.”
A well-written dress code and appearance policy prevents misunderstandings and clarifies the issue. Such a statement communicates to staff exactly what the policy means and should address the topics of clothing, appearance, attire, jewelry, and/or body art. It should also state that you will attempt to make reasonable accommodations in regard to an employee’s sincerely held religious beliefs concerning appearance.
Make sure the policy is fair and that it does not place heavier demands on one sex than the other. And by all means, carry out your policy consistently.
If you require staff to wear a certain type of uniform, you may be responsible for providing and maintaining the uniforms or reimbursing employees for the cost. This will depend on whether the uniform is industry standard or unique. For example, scrubs or lab coats for certain positions may be an industry standard and could be worn from one job to the next, which relieves the employer of the cost. Other specific uniform requirements, such as black slacks and blue shirts, would probably be considered unique and would require payment, as well as care. Check with your state laws as these requirements vary.
Employers do have latitude about dress code policies and the type of work employees perform. For example, you may have separate dress and appearance standards for employees who have direct contact with patients than for those employees who do not. Similarly, you may require dental assistants to wear uniforms while the front-office staff is expected to wear business attire.
One other important aspect to address in your policy is safety or sanitation issues. Take into account that some piercings or body ornaments may raise legitimate safety or sanitary concerns. This also would include the type of footwear worn by staff. Open-toe shoes, slippers, and sneakers could represent a safety issue. Long hair hanging loose at the chair could also present a safety issue.
In terms of accommodation, federal and state laws protect employees from discrimination based on religion. The term “religion” includes “all aspects of religious observance and practice, as well as belief,” and you can require that proof be provided of the religious belief.
Thus, you are required to make reasonable accommodations for the sincerely held religious beliefs of an applicant or employee if at all possible. Reasonable accommodations would include an employee’s religious creed that affects ornaments or style of attire.
Follow these steps to process a request for an accommodation and reduce the risk of lawsuits:
- Engage in a conversation to discuss employees’ particular needs. They should at least know that you will make a sincere effort to accommodate their needs.
- If an accommodation is made, check periodically with the employee to ensure his or her satisfaction with the arrangement.
- If an accommodation is not possible, the employer must show that he or she initiated good faith efforts to reasonably accommodate the employee’s religious practices but could not do so without undue hardship.
Your accommodation policy should be in writing and state:
- That an accommodation request must be made in writing
- That it must be submitted directly to the owner/manager (or designated person)
- That the request will be carefully evaluated taking into consideration:
- The cost of the accommodation in relation to the size of the practice
- The number of employees working in the particular assignment
- The number of employees who need the accommodation
- The safety of the person and others
A reasonable accommodation may include:
- Schedule work hours to coincide with religious observances.
- Modify dress standard requirements.
- Determine if any of the tattoos or body piercings are likely to offend. (Are they obscene or do they portray sexual, ethnic, or religious discrimination?)
- Cover up tattoos and/or remove body piercings.
If you are going to make a change in policy after having accepted certain appearance standards in the past, make sure staff members understand the reasons for the change. It could be caused by complaints from patients, other employees, safety, or new practice image desires.
As is evident from the information provided, it is essential that employers have a policy that establishes appearance standards.
Whether you are defining your criteria for professional dress or body art, you could easily be held accountable for demonstrating that your requirements are “legitimate and nondiscriminatory.”
Having a well-written dress code and appearance policy will help avoid any uncertainty on the part of your employees and provide you the essential documentation you need if a discrimination complaint is filed against you. And if accommodation is requested by an employee, consider it objectively since it provides you yet another opportunity to ensure your dress code is applied in a consistent and nondiscriminatory manner.
