Ever have a sales employee show up at work with a first-time facial piercing? Or, have a job applicant arrive at the interview sporting a hard-to-hide tattoo of some thing reveling in the black arts or an image of Beelzebub? The HR decision is easy, right? Send the pierced employee home with instructions not to wear the adornment at work, and tell the job applicant that the company will never hire someone bearing that ink. Ten or even five years ago, these employment actions might have been uncomplicated and legal. Perhaps no more.
California’s passage of AB 1964, which added religious garb and grooming as protected religious practices, was a reminder that changing social attitudes continue to shape our employment laws. The federal courts have similarly protected religious appearance, though federal statutes and regulations lag behind. Apparently fueling the expansion of religious appearance protections is the legal acceptance of more and more non-traditional religions or religious belief systems. For example, a California court, in 2002, ruled that veganism was not a religion under California’s employment laws; rather, it was a dietary lifestyle. Fast forward to 2013, an Ohio federal court has a different view – veganism just might be a “religion” after all. Other non-traditional religions have received legal recognition in employment cases in various jurisdictions: Rastafarianism, Wiccan, Satanism, Kemeticism, and Universal Belief System, among others.
As the laws have added more non-traditional religious beliefs to the category of protected religions, it follows that non-traditional practices, including appearance, will be implicated. The tension between the traditional and the new was evident in a 2004 Massachusetts federal appellate court decision, in which the court ruled that an employer had properly terminated a face-pierced sales employee under its “professional attire” policy. There, the court quickly accepted the employer’s undue burden defense, but refused to decide whether The Church of Body Modification, the employee’s religion and reason for the piercing, met the legal criteria of a protected religious belief. Perhaps the court just wasn’t ready to give some recognition to this non-traditional belief system.
But, societal attitudes about body modification are changing. A 2012 Harris Poll revealed that more Americans sport tattoos and piercings:
- 21% have tattoos (14% in 2008);
- 26% in the West have tattoos (20% in 2008);
- 38% of 30-39 year olds have tattoos (25% in 2008);
- 4% have facial piercings (2% in 2008);
- 7% have other, non-ear piercings (2% in 2008).
Faced with growing judicial and legislative protections of non-traditional religions and practices, along with America’s increasing acceptance of body modification, employers will have to adapt and expect employees to sport body modifications that might have a non-traditional-religion basis. Best practices should include having or updating policies relating to attire and religious accommodation, making respectful and reasonable inquires into an employee’s non-traditional religion when accommodation is requested, better documentation (e.g., written request for religious accommodation forms), and presenting more flexible, less dogmatic responses to religious accommodation requests.
As employees present with new, non-traditional religions and practices, employers might be called upon to respond in new, non-traditional ways.