“LOOK BOSS, THE [CLAIM], THE [CLAIM]!” – Tattoo, Fantasy Island

Tattoos and piercings are far more prevalent in society today than in recent history. Gone are the days where one would hurriedly cross the street in avoidance of an encounter with a tattooed man or woman walking in their direction. Tattoos are no longer associated with criminals and seedy characters, but now adorn the bodies of lawyers, doctors, teachers, police officers and countless other professionals. Piercings considered to be acceptable by most are no longer limited to those dangling from the earlobes of women. But can an employer make a determination about your employment based on your tattoos alone? The simple answer is not a surprising one, coming from a lawyer - it depends.

Connecticut is an at-will employment state, which means an employer or an employee can terminate the employment relationship for any legal reason, or for no reason at all. An example of an illegal reason would be one stemming from discrimination based on race, religion, gender, etc. Of course, tattoos and piercings do not fall under any of those categories. Or do they?

An example of a successful claim for religious discrimination is found in EEOC v. Red Robin Gourmet Burgers, Inc., heard in the United States District Court for the Western District of Washington. In that case, an employee who practiced a religion that worshipped the Egyptian god, Ra, was directed to cover up two small circular tattoos on his wrists. The employee refused, explaining that doing so would be considered sacrilegious. Upon his refusal to cover the tattoos, the employee was terminated. The former employee later initiated the action in Federal Court which survived a motion for summary judgment, and the case eventually settled upon payment by the employer in the amount of $150,000.

Of course that is not to say that every instance where an employee claims his/her tattoos have religious significance will turn out the same way. The key is to demonstrate, as the plaintiff did in EEOC v. Red Robin Gourmet Burgers, Inc. (at least preliminarily), that the employee possesses a bona fide religious belief and that an employer failed to provide reasonable accommodations for the exercise of that religious belief. Nonetheless, the employer may succeed if it can show that providing such an accommodation would cause an undue hardship on the conduct of its business.

The U.S. Court of Appeals for the First Circuit in Massachusetts came down the opposite way for an employee with a facial piercing in Cloutier v. Costco Wholesale Corp. Ms. Cloutier claimed that she notified her employer that a conflict existed between the “no facial jewelry” provision in the dress code policy and her religious practice as a member of the Church of Body Modification. The trial court found that the employer proposed alternate and reasonable options which were refused by Ms. Cloutier, who insisted that she be excused from the provision altogether. It was further held that accommodating Ms. Cloutier in the manner she demanded would cause the employer to suffer an undue hardship. The appellate court, in its opinion, went even further and found that the facts did not support a finding of impermissible religious discrimination.

After all that, you can see why the simple answer is “it depends.” If you believe you may have been the victim of discrimination, you should consult with a labor and employment attorney.

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