Study Shows Tattoos in the Workplace Becoming a Non-Issue but Can Still Pose Employment Law Issues for Employers

Traditionally, tattoos once identified their owners as rough characters.  This bodily artwork was generally and stereotypically associated with sailors, bikers, members of the military, or the result of an alcohol-assisted impulse purchase.  However, a glance around the average coffee shop or suburban mall clearly demonstrates that is no longer the case.  According to the Pew Research Center, nearly 40% of people born after 1980 have one or more tattoos, and 25% have a piercing someplace other than an earlobe.  According to tattoo industry estimates, 60 % of all tattoos are being done on women.  Surveys of millennials show that 70% will hide their tattoos in the workplace so as not to negatively impact their employment prospects.

However, a new study by researchers from the University of Miami and University of Australia shows that with changing societal norms, such concerns may have little to no basis.  In the study, entitled “Are Tattoos Associated with Employment and Wage Discrimination? Analyzing the Relationships between Body art and Labor Market Outcomes”, the researchers surveyed more than 2000 people in all 50 states, and found the  salaries and wages of tattooed employees were  “statistically indistinguishable” from those of their non-tattooed counterparts.  The study suggests that employers recognize that by treating tattoos as a negative factor in hiring and employment decisions, they run the risk of missing out on well-qualified job candidates.

From an employment law standpoint, employers generally retain broad discretion in making employment decisions based on tattoos, and whether having an “inked” employee is suitable to their particular company.  However, under certain scenarios, restrictions on tattoos in the workplace could run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”) and possibly constitute religious discrimination.  A good example of this is the lawsuit that was brought by the Equal Employment Opportunity Commission (“EEOC”)  against the Red Robin Gourmet Burgers chain of restaurants.  In EEOC v. Red Robin Gourmet Burgers, Inc., the EEOC alleged that the company religiously discriminated when they fired an employee for not covering up his tattoos and refusing to accommodate a religious practice.  Red Robin ultimately settled the lawsuit prior to trial for $150,000 and entered into a consent decree with the EEOC.

The case began when Edward Rangel was hired as a server at Red Robin’s Bellevue, Washington restaurant.  In the lawsuit, Rangel asserted he was an adherent of the Kemetic religion, an ancient Egyptian faith.  As part of his religious practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions, less than a quarter-inch wide and encircling his wrists, are liturgical verses from an Egyptian scripture.  According to the lawsuit, the inscriptions symbolized Rangel’s religious dedication and his religious practices made it a sin to intentionally conceal the religious inscriptions.

Rangel had the tattoos on his wrists when he was hired, and at that time, Red Robin has a dress code that prohibited employees from having visible tattoos.  The EEOC said that although Rangel worked at Red Robin for approximately six months without a complaint from customers, co-workers or his immediate supervisors, a new manager saw the tattoos and fired Rangel for not concealing them.

Rangel claimed he had repeatedly talked with management, giving detailed explanations of his faith and the need for an accommodation. He sought an exemption from the dress code, but Red Robin refused to provide it or any alternatives.  Title VII requires employers to make reasonable accommodations to sincerely held religious beliefs unless it would cause undue hardship to the business.  Throughout the suit Red Robin maintained that allowing any exceptions to its dress code policy would undermine its “wholesome image.”  Before the parties settled, Red Robin’s argument was rejected by the District Court, which held that Red Robin was required to support its undue hardship claim with more than hypothetical hardships based on unproven assumptions.

The lesson to be learned from that case is that Title VII and the EEOC take a very broad view of religion and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice.  To that extent, tattoos that are part of a religious practice may need to be accommodated.  Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs. 

Purely decorative secular tattoos do not impose a duty of accommodation, and employees are free to make employment decisions on that basis or require employees to cover them up at work.  However, as indicated by the recent study, it appears that tattoos in the workplace are rapidly approaching the point of becoming a non-issue.  





FIFTH CIRCUIT RULES THAT THREAT OF WORKPLACE VIOLENCE TRUMPS FMLA RETALIATION CLAIM

             

An alleged threat by a former Southwest Airlines employee “that he wished he could order a black trench coat so that he could bring his shotgun to work” was enough to derail his claim that his employer terminated him in retaliation for taking intermittent leave under the Family and Medical Leave Act (“FMLA”). 


In affirming the District Court’s grant of summary judgment in favor of Southwest, the April 18, 2018 opinion by the U.S. Court of Appeals for the Fifth Circuit agreed the airline had established a legitimate non-discriminatory reason for discharging Tate Clark, and that Clark had failed to prove that the reason was pretextual, or false.

 Clark began working for Southwest in 2001 as a customer service agent, and in 2011, he applied for and was approved for intermittent leave under the FMLA for his migraine headaches. Clark’s intermittent leave continued until his discharge, and he was never denied FMLA leave during his tenure with Southwest.

The incident that resulted in his termination took place on February 25, 2015, while he worked an early morning shift alone with a female co-worker.  On February 27, 2015, the co-worker sent the following note to her supervisors:

Hi guys, I wasn’t sure if I should share this but the more I thought about it, the more it bothered me. On Wednesday night, When Tate & I were working together, he was looking at the Lands End uniform web site. There was a picture of the trench coat and I asked him if he was going to order it. He said no, but I wish they made it in black. I asked him why and he said so he could bring in his shotgun. I told him not to joke about something like that and he just sat there chuckling. I’m not necessarily afraid, but it wasn’t the first time he referred to his guns in that manner.

 After a brief investigation, Clark was suspended on March 1, 2015, and on March 9, he was terminated for violating Southwest’s Zero Tolerance Workplace Violence Policy that prohibited threatening workplace violence.  Clark subsequently filed a lawsuit in the United States District Court for the Western District of Texas, alleging that the true reason for his termination was retaliation for taking FMLA leave.

In support of his claim, Clark argued that his taking of FMLA leave on February 27, 2015 established a connection with his March 9, 2015, termination, and he cited other incidents, including a negative workplace review, that had occurred more than a year before his termination. 

In dismissing Clark’s lawsuit, the District Court indicated that while the evidence of a causal connection between Clark’s taking of FMLA leave and his termination was weak, his claim failed because Southwest had established a legitimate, non-discriminatory reason for discharging him, and Clark could not show the airline’s reason was false.  In his deposition, Clark had testified that he had been aware of Southwest’s workplace violence policy and had received training on it. He also said he had understood that it was a “zero tolerance” policy, conceding that there was “no room” “to have any sort of excuse for that.” Clark also agreed that, if he had made it, his comment about bringing in a shotgun would have violated the policy and would have been grounds for termination.





A GOOD EXAMPLE OF HOW “NOT” TO REASONABLY ACCOMMODATE UNDER THE ADA

 

           The settlement of a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) aptly demonstrates the adage that sometimes the best example is a really bad example. 

 

          The EEOC filed the suit in 2017, alleging that Hester Foods, which operated a Kentucky Fried Chicken restaurant in Dublin, Georgia, had violated the Americans with Disabilities Act (“ADA”) by firing its restaurant manager when the company’s owner found out that the woman was taking medication prescribed by her doctor to treat her bipolar disorder.

 

          According to the EEOC lawsuit, when the owner discovered the woman was receiving the treatment, he referred to the manager’s medications in obscene terms, and made her destroy her medications by flushing them down a toilet at the restaurant. When the woman later told the owner that she planned to continue taking the medications per her doctor’s orders, the owner told her not to return to work and fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process.

          In addition to paying a $30,000.00 settlement, the consent decree settling the ADA lawsuit requires the restaurant operator to create and disseminate a handbook containing policies that prohibit discrimina­tion. The decree also requires that the company provide annual equal employment opportunity training to its managers, supervisors, and employees. The two-year decree further requires the company to post a notice to its employees about the lawsuit and to provide periodic reporting to EEOC about disability discrimination complaints.  In commenting on the settlement, Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office stated “Employers are not allowed to force workers with disabilities to choose between their jobs and their health. Reasonable accommodation includes allowing workers to rely on their physicians, not on the opinions of the company managers.”
 

          The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. 

          An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee, and must be judged on a case-by-case basis. 

 

 

         Making a reasonable accommodation can sometimes be difficult but more often, can be addressed through common sense and engaging in an interactive process with the employee.  As illustrated by this case, failure to do so can be costly.



 

DOL Reduces the Risk of Employers Offering Unpaid Internships

Employers interviewing for their upcoming summer internship programs now have more flexibility and less risk of wage and hour litigation due to a significant policy turnaround by the U.S. Department of Labor (DOL).

 

Traditionally, unpaid internships offered college students the opportunity to gain real-life business experience in their chosen career, while for-profit employers received the benefit of additional assistance in the workplace, as well as an opportunity to assess potential new employees.

 

However, in 2010, this symbiotic relationship was complicated by the DOL’s institution of a strict six-factor test to determine if the individual was properly classified as an unpaid intern or an employee entitled to wages and overtime under the Fair Labor Standards Act (FLSA).

 

Under the former DOL test, all of the following criteria must have been met to be considered an intern by the FLSA: (1) the internship is similar to training that would be given in an educational environment, (2) the internship experience is for the benefit of the intern, (3) the intern does not displace regular employees and works under close supervision of existing staff, (4) the employer does not gain an immediate advantage from the intern's activities (and the employer’s operations may actually be impeded or hindered by the intern’s activities), (5) the intern is not guaranteed a job at the end of the program, and (6) the employer and the intern each understand that the internship is unpaid.

The 2010 test resulted in current and former interns bringing class action lawsuits against companies such as Viacom, 21st Century Fox, and fashion giant Gucci, resulting in large dollar settlements. While some companies reacted by creating internships that paid at least the minimum wage, many other companies simply eliminated internship programs out of fear of litigation.

 

In January 2018, the DOL released Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act, which scrapped the old test, in favor of the court-favored “primary beneficiary test” to determine if an individual is an intern or an employee under the FLSA. The new seven-factor test is as follows:

 

1.         The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, expressed or implied, suggests that the intern is an employee—and vice versa.

2.         The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.

3.         The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4.         The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5.         The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6.         The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7.         The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA depends on the circumstances of each case.

If analysis of these circumstances reveals that an intern or student is actually an employee, he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.

 

Employers should carefully assess their internship programs under the new criteria, and if needed, seek advice of counsel in regard to any use of unpaid interns.