Nearly every employer can attest to the changing standards of dress in the workplace over the past several years. While business suits were once the norm, employers are now implementing grooming policies and dress codes to address, among other things, the size and location of tattoos and body piercings. At the Society for Human Resource Management's Annual Conference and Exposition in Washington, D.C., Jonathan Yarbrough of Constangy, Brooks & Smith, LLC, addressed the challenges employers face in dealing with "unconventional employees" in terms of grooming and hygiene, tattoos, and body piercing.

According to court rulings, an employer has a legitimate business interest in presenting a workforce that is "reasonably professional in appearance." Therefore, an employer has the right to implement grooming and dress policies to protect that legitimate business interest. Employers may not, however, apply the policies in a discriminatory manner. Title VII, state statutes, and local ordinances are among the laws that may apply when employees challenge an employer's grooming policy.

Appearance, particularly hairstyles, can be related to an employee's religious beliefs. If an employee claims to have a sincerely held belief, it's permissible for an employer to ask the employee questions about the requirements of the employee's belief in terms of appearance, dress, holidays observed, and other pertinent requirements, Yarbrough said. Then the employer can discuss possible accommodations with the employee if the requirements conflict with the company's grooming policy.

However, Yarbrough stressed, the employer does not have to accept the employee's proposed accommodation. An employer can consider cost, morale, safety, and other related issues when considering possible accommodations. If accommodating the employee would create an undue hardship for the company, an employer does not have to provide the accommodation. An undue hardship for a religious accommodation can occur when there is more than a minimal cost to the employer.

An employer may have different standards for men and women with regard to hair length. Yarbrough said the courts have been uniform in their rulings that different hair standards do not violate Title VII. Employers may also maintain different standards for men and women regarding earrings, as the courts have found that such standards are not based on sex, but rather reflect a "customary code of grooming."

When it comes to tattoos, however, employers must be sure not to have different policies for men and women, Yarbrough said. An employer may implement a policy against visible tattoos, and may limit the size and location of tattoos. But the policy must be applied uniformly to both men and women to avoid claims of gender discrimination. One employer was found liable for sex discrimination when it required a female employee to cover a tattoo on her shoulder, but had no similar requirement for male employees with tattoos. Yarbrough noted that an employer can require an employee to cover a tattoo if it is offensive.

Employers must be careful when implementing grooming and dress policies in the public sector. In addition to federal statutes, public sector employees are protected by the First Amendment, which protects free speech. Generally, Yarbrough said, tattoos are not considered to be constitutionally protected free speech.