Discussion of appearance issues for employers, particularly tattoos and piercings. Also some info on the more assertive EEOC and some comments on lifestyle discrimination or, "lookism."

1. The HR Generalist

2.  Outrageous tattoos.
 Traditional religious clothing.
 Smoking.
 Cross-dressing and gender identity.
 Provocative dress.
 Sizism.
 Gender orientation.
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6.  Tattoos once identified their owners as rough
characters.
 The stereotype was generally associated with
bikers, sailors and marines.
 Today, tattoos are mainstream. It is just as
likely to find the 23 yo receptionist as the US
Marine graduate with a tattoo.
 Along with tattoos, body piercing has become
more common.
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7.  Tattoos among professionals are no longer
unusual and industry trade groups estimate
that 60% of all tattoos are being done on
women.
 When it comes to employment, however,
pragmatism tempers social acceptance; 78%
of younger employees state that they would
cover or conceal their tattoos during a job
interview.
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8.  So, when does an employee‟s bodily self-
expression cross the line and allow us to
order them to conceal their tattoos?
 In some positions, the issue may never arise.
 In other situations, the open display of a
tattoo or a facial piercing may not be
conducive to the message that we are trying
to convey to the public.
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9.  While there remains a great deal of discretion,
more and more we need to be careful that our
restrictions do not violate Title VII or, even
create religious discrimination.
 The EEOC has provided at least one set of
guidelines for us to follow, however.
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10.  Employee who was an adherent of Kemetic,
an ancient Egyptian religion.
 As part of his religious practice, he received
tattoos and liturgical inscriptions on his
wrists.
 The inscriptions symbolized his religious
dedication to his religious practices and it
would be a “sin” to intentionally conceal the
religious inscriptions.
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11.  The employee had the tattoos on his wrist
when he was hired and Red Robin has a dress
code policy that prohibits employees from
having “visible tattoos.”
 He worked for 6 months, however, without
any complaints.
 A new manager saw the tattoos and fired
him.
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12.  The employee asked for a dress code
accommodation and was refused.
 Red Robin argued that allowing the tattoos
would undermine their “wholesome image.”
 The District Court rejected Red Robin‟s
argument and the case was settled out of
court.
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13.  2 lessons from the case:
◦ Title VII requires us to make “reasonable
accommodations” to sincerely held religious beliefs
unless it will cause undue hardship. The EEOC takes
a broad view of religious beliefs and
accommodation.
◦ The courts do not want to be placed in the situation
of deciding what is or is not a bona fide religion or
religious practice.
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16.  The same legal standard may apply to the
related issue of body piercings or body art.
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17.  Employee worked in the front end at the
retailer.
 When she was hired, she had 11 ear piercings
but did not claim any religious significance to
them.
 She later claimed membership in the Church
of Bodily Modification (CBM).
 Body modification includes piercing,
branding, cutting, scarification and tattooing.
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18.  She later had her eyebrow pierced even
though Costco forbids the wearing of facial
jewelry.
 Costco proposed an accommodation by
allowing her to wear clear plastic retainers in
her piercings during work hours but she
refused.
 She was ultimately terminated.
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19.  As we previously stated, the court dodged the
question as to whether CBM is a bona fide
religion and focused on Costco‟s attempt at
accommodation and awarded summary
judgment.
 The appeals court took a different tack and
held that her demand for a blanket
exemption from the dress code policy was an
“undue hardship.”
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20.  We should avoid overly broad dress codes or
similar policies that do not recognize the
need for an accommodation.
 Religious tattoos or piercings may be subject
to accommodation; secular or purely
decorative ones do not need to be
accommodated.
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21.  Tattoos or piercings of a sexual nature or
with racist symbols or images may clearly be
prohibited and employees made to cover
them up.
 There is actually a whole industry of
specialized clothing and make-up designed
to conceal tattoos in the workplace.
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23.  In our society, trousers have been adopted by
women and is not regarded as problematic.
 In cultures where men have traditionally worn
skirt like garments, the kilt or sarong is not
seen as problematic.
 Dress, then, is a social construct.
 However, women dressing in men‟s clothing
and men dressing as a women, receive very
different responses.
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24.  The notion of gender identity appeared in the
Diagnostic and Statistical Manual of Mental
Disorders, DSM-III, in the form of two
psychiatric diagnoses of gender dysphoria:
◦ Gender identity disorder of childhood
◦ Transsexualism
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25.  “Gender identity" is understood to refer to
each person's deeply felt internal and
individual experience of gender, which may
or may not correspond with the sex assigned
at birth, including the person's sense of the
body (which may involve, if freely chosen,
modification of bodily appearance or function
by medical, surgical or other means) and
other experience of gender, including dress,
speech and mannerism.
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26.  Gender identity and related topics are constantly
debated within politics.
 Recently, it was decided under the Affordable
Care Act that health insurance exchange's will
have the ability to collect demographics
regarding gender identity and sexual identity
within the effected populations.
 The questions will be optional, but will help
policymakers better recognize the needs of the
LGBT community, and prove that the goal is to
provide insurance for everyone.
 The questions are legal, and federal policies
promise that nobody will be discriminated
against.
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27.  Executive Order 13087
◦ Signed 1998
◦ Prohibits discrimination on the basis of sexual
orientation for federal workers, selected civilian
members of the military, postal workers and others.
◦ Does not apply to the private workplace but it
allows the EEOC to “set the stage” for later action.
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28.  New Strategic Enforcement Plan:
◦ Eliminating barriers in recruitment and hiring.
 Target class based recruitment and hiring practices
that steer individuals into specific jobs based on their
status in a particular group.
◦ Protecting immigrant, migrant and other vulnerable
workers.
 Target disparate pay, job segregation, harassment,
trafficking and discriminatory practices affecting
workers who may be unaware of their rights or
reluctant or unable to exercise them.
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29.  Addressing emerging and developing issues.
◦ The Americans with Disabilities Act
◦ Accommodating pregnancy related limitation under
Title VII and the ADA
◦ Coverage of lesbian, gay and transgendered
individuals under Title VII
 Enforcing equal pay laws.
◦ Target pay discrimination based on gender by
encouraging the use of directed investigations and
commission charges.
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30.  Preserving access to the legal system.
◦ Target policies and practices that discourage
individuals from exercising their rights. Include
retaliation against complaining employees, overly
broad waivers required by employers, settlement
provisions that prohibit filing charges.
 Preventing harassment.
◦ Pursue systemic investigations and litigation and
conduct an outreach campaign to deter harassment
in the workplace.
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31.  EEOC Plans to litigate more cases, particularly
systemic cases where company wide hiring or
other practices have an illegal discriminatory
impact on certain protected classes, even if
not intentional.
 Obtained $36.2 million in settlements from
systemic investigations in 2012 versus $8.6
million in 2011.
 $372.1 million in monetary relief for charging
parties in 2013.
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32.  Systemic cases can be triggered by the use of
screening tools that might have an adverse
impact on certain employees.
 Pre-employment tests, background checks
and date of birth questions on employment
applications will draw EEOC attention.
 EEOC is asking for large data sets of statistics
to show potential systemic discrimination.
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33.  8/27/13, OFCCP announces new regulations
requiring federal contractors to establish
annual hiring benchmarks for disabled
individuals and protected veterans.
 Establishes a 7% utilization goal for each Job
Group or the entire workforce if over 100
employees.
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34.  Data Collection-document and update
annually # of individuals with disabilities and
protected veterans who apply for jobs and the
# hired.
 Invitation to self-identify-at both pre-offer
and post-offer.
 Records access requirements-available to
OFCCP.
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35.  Religious discrimination spotlight.
◦ Evangelical Christians-employee refuses to submit
to biometric hand scan, claiming a “relationship
between hand-scanning technology and the Mark of
the Beast” from revelations.
◦ Seventh Day Adventists-the Sabbath is from
sundown Friday to sundown Saturday
◦ Pentacostals-female employee who religious beliefs
forbids her to wear pants, a violation of the dress
code. Fired for wearing a skirt.
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36.  Currently, 1 state (Michigan) and 6 cities
outlaw weight and height discrimination in
employment. (Massachusetts is next)
 The AMA has declared obesity a disease.
 The EEOC is taking the position that obesity
is a “qualified disability” under the ADA.
 “Appearance” bias or “lookism.”
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37.  60% of overweight women and 40% of
overweight men suffered discrimination.
◦ Handsome men earn 5% more
◦ Attractive women earn 4% more
◦ 3% of women have already had cosmetic procedure
to increase their perceived value in the workplace.
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38.  Long term unemployed (those out of work for
more than 1 year) suffer discrimination in
employment.
 New York City, New Jersey and other states
have pass legislation making them a
“protected category” under their regulations.
 Prohibits using unemployed status in any
employment decisions.
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39.  Federal Appeals Court in Chicago
◦ “Employers must assign a qualified employee with a
disability to a vacant job for which the employee is
qualified, even if better qualified applicants for that
vacant job exist. 10/12.
◦ Supreme Court decision ruled that reasonable
accommodation under the ADA sometimes requires
employers to give preferential treatment to disabled
employees.
◦ “disability neutral” policies sometimes fall short of
what the ADA requires.
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41.  Vance v. Ball State
◦ Vance, an African American employee argues that
her co-worker had the authority to direct her work
and was, therefore, a supervisor.
◦ Ellerth/Farragher framework. Employers strictly
liable for supervisor harassment.
◦ The Court narrowed the term “supervisor” to
include the power to make “a significant change in
employment status…”
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42.  Nassar v. UT Southwestern.
◦ Doctor alleged that he was denied employment
after complaining about discrimination.
◦ University stated that it would not have hired him
anyway since they required that all doctors be
members of the university faculty.
◦ The Court held that in retaliation claims, the
employee needs to show that the employer would
not have taken the adverse action “but for” the
retaliatory move.
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43.  US v. Windsor.
◦ The Court ruled unconstitutional a law denying
federal recognition of legally married same sex
couples.
◦ Struck down Section 3 of DOMA holding that it
violated the equal protection component of the 5th
Amendment‟s Due Process Clause.
◦ If you have multiple state operations, deal with
what a state considers a “spouse.”
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44.  Ruling changes administration of FMLA
◦ Under FMLA, employers must provide employees
time off to care for their spouse.
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Employer‟s State Employee State of
Residence
“Spouse” for FMLA
Purposes
Same Sex Same Sex Yes
Same Sex Non-Same Sex No
Non-Same Sex Same Sex Yes
Non-Same Sex Non-Same Sex No

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46.  Fair Credit Reporting Act
◦ Consumer Financial Protection Bureau updated the
Summary of Rights and Notice. Replace old forms
with new ones.
 Department of Labor-FMLA
◦ New FMLA poster
 Must be displayed where employees and applicants
can see it.
 Must be displayed even if there are no eligible
employees.
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47.  Employers granted one year extension of ACA
penalties.
◦ Penalties for not providing “affordable” health care
delayed to January 2015.
 Marketplace Notice to employees of coverage
options.
◦ Required to provide employees with written notice
of availability of exchanges.
◦ Must be in writing, by first class mail or
electronically.
◦ No penalty for non-compliance.
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48.  Employment Non-Discrimination Act
◦ ENDA amend Title VII to prohibit employees on the
basis of sexual orientation or gender identify.
◦ Passed out of committee, full Senate vote this week.
 DOL Right to Know Law
◦ Require employers to provide justification for
classifying workers as either employees or
independent contractors.
◦ Public Comment period, first step.
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49.  Comp Time Legislation. Extends
compensatory time benefit to private
employers in the same manner as public
employees.
◦ Up to 160 hours per year
◦ Allows a „cash out‟ arrangement
◦ Use comp time within a „reasonable time period‟
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