Tattoos in the U.S. Now Mainstream and Workplace Tattoo Stigma Continues to Fade

According to a recent survey, the United States now holds the bronze medal for the most number of people with tattoos, with 46% of the American population having at least one tattoo.  The U.S. was beaten by Italy, with 48%, followed by Sweden with 47%.  However, according to the survey, Americans top the charts for people with multiple tattoos, men and women get tattoos at the same rate, and that tattoos are more popular among those with higher levels of education. 

What this means for employers, is that there is now an almost 50-50 chance that a job applicant will have one or more tattoos.  Traditionally, tattoos were viewed negatively during the hiring process and were not viewed as an asset in workplace advancement.  As recently as 2016, a survey of Human Resource managers cited tattoos as the third most likely physical attribute that limits career potential, and polling of millennials show that 70% will hide their tattoos in the workplace so as not to negatively impact their employment prospects.  However, a study by researchers from the University of Miami and University of Australia shows that 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.  This is borne out in corporate America, where some of the country’s biggest employers are now considered “tattoo friendly”. 

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.  Likewise, tattoos that reflect offensive or discriminatory messages can be the basis for not hiring an applicant.    

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.

NLRB Rules Employers Can Bar Union Solicitation by Nonemployees on Company Property Open to the Public



In the latest in a series of business-friendly decisions, the National Labor Relations Board (NLRB) has ruled that employers may legally bar union solicitation by nonemployees on company property that is otherwise open to the public. [UPMC N.L.R.B., 368 N.L.R.B. No. 2, Opinion 6/14/19.] The NLRB’s 3-1 ruling expressly overturns a nearly 40 year old Board precedent, referred to as the “public space exception”. Under that now reversed precedent, nonemployee union organizers could not be denied access by employers to cafeterias and restaurants open to the public if the organizers used the facility in a manner consistent with its intended use and were not disruptive.   The case began with a 2013 incident in which two union organizers met with six employees in the cafeteria of a Pennsylvania hospital to discuss organizing a union campaign. Union flyers and pins were displayed on the tables at which the union representatives were sitting. The hospital cafeteria was accessible to hospital employees, patients, their families and other visitors. After an employee complained of the union solicitation, hospital security requested to see the identification of the union representatives, and subsequently requested they leave the premises. The two women refused to leave, and the head of security then called 911. Six police officers arrived and escorted the union representatives from the cafeteria. While the hospital cafeteria was open to the public, it had been the hospital’s regular practice to remove nonemployees who were engaged in promotional activity, including soliciting or distributing literature, in or near the cafeteria. Prior to the union incident, the hospital had previously escorted off the property a group soliciting for money, as well as a religious group engaged in solicitation.   In ruling that the hospital did not engage in an unfair labor practice by ejecting the union representatives, the NLRB held that because the hospital uniformly prohibited any groups or individual from soliciting on its property. “[w]e therefore hold that an employer may prohibit nonemployee union representatives from engaging in promotional activity, including solicitation or distribution, in its public cafeteria so long as it applies the practice in a nondiscriminatory manner by prohibiting other nonemployees from engaging in similar activity.”   The decision is being applauded by business groups for giving employers more control over who can access company property. However, the Board’s sole dissenting member has blasted the majority’s decision as inconsistent with Supreme Court precedent, and stating of the hospital’s actions “[i]f this was not [anti-union] discrimination, then it is hard to know what is.”   While this latest decision is welcomed by employers, companies should always proceed cautiously and seek legal counsel before taking actions concerning union activity or any other situations potentially implicating protected concerted activity under the National Labor Relations Act (NLRA).   Other significant ruling by the majority GOP NLRB may be on the horizon. Back in 2014, under the Obama administration, the then Democrat-controlled NLRB issued a controversial ruling that declared employers, generally, cannot prohibit employees from using a company’s e-mail system for union organizing purposes or other activities protected by the NLRA. The current NLRB has sought to revisit that decision, and possibly overturn it, by soliciting public comment.



FOURTH CIRCUIT RULES THAT SPREADING WORKPLACE RUMORS OF “SEX FOR PROMOTIONS” CAN CONSTITUTE SEXUAL HARASSMENT

“No other evil we know is faster than Rumor, thriving on speed and becoming stronger by running.”

     _ Virgil, The Aeneid

 

Back in 19 BC, the ancient Roman poet Virgil noted the destructive nature of rumors.  More recently, in 2019, a federal appeals court has held that rumors can be a potential basis for liability in employment law litigation.

          In a significant decision, the United States Court of Appeals for the Fourth Circuit reversed a lower court and held that false workplace rumors that a female employee had been promoted for having sex with her boss could serve as the basis for sexual harassment and retaliation claims against an employer.  The case also serves as a warning to employers of the costs involved in not effectively addressing such situations.

          In Parker v. Reema Consulting Servs., Inc. (4^th Cir. Feb. 8, 2019), Evangeline Parker worked at her employer’s warehouse facility.  While she began as a low-level clerk, she was promoted six times, ultimately rising to Assistant Operations Manager of the facility.  However, she subsequently learned that a jealous subordinate, whom she had been promoted over, and a higher ranking manager at the warehouse, were actively spreading rumors that her success was the result of her having a sexual relationship with another company official.  As alleged in the lawsuit she later filed, as the rumor spread, Parker “was treated with open resentment and disrespect” from many coworkers, including employees she was responsible for supervising. As she alleged, her “work environment became increasingly hostile.” 

          The manager who was spreading the rumor subsequently confronted Parker and blamed her for “bringing the situation to the workplace” and told her “he could  no longer recommend her for promotions or higher-level tasks because of the rumor” and he “would not allow her to advance any further within the company.”  When Parker subsequently sought to talk to the manager about the situation, the lawsuit alleges the manager lost his temper and began screaming at her.  Parker subsequently filed a sexual harassment complaint against the manager and the subordinate with the company’s Human Resources Manager.  Following the complaint, the manager in question issued written warnings against Parker and she was fired as a result.

          Pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), Parker filed a lawsuit alleging a hostile work environment claim based on discrimination because of her sex, as well as a retaliation claim.  However, in January 2018, the federal District court granted the employer’s Motion to Dismiss.  The District Court held she failed to state a sex discrimination claim because “the establishment and circulation of this rumor is not based upon her gender, but rather based upon her alleged conduct.”  She subsequently appealed the decision to the United States Court of Appeals for the Fourth Circuit.

          In reversing the District Court’s decision, the Fourth Circuit held that the lower court was wrong in deciding that the workplace rumor was not based on Parker’s sex:

As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain.

 

In short, because “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.

 

 

In addition to reversing the lower court’s dismissal of Parker’s sex discrimination claim, the Fourth Circuit also reversed the dismissal of her retaliation claim, allowing both claims to proceed to a trial on the merits.

          The lesson from this case is that workplace gossip and rumors are not harmless and can result in potential liability to employers when they involve protected classes under Title VII or other anti-discrimination statutes.  Human Resources should take complaints about such rumors seriously and address them directly.



GOVERNMENT SHUTDOWN RESULTS IN EXTENDED DEADLINE FOR EMPLOYERS TO SUBMIT EEO-1 DATA

 

Due to the recent partial lapse in federal government appropriations, the deadline to submit EEO-1 data will be extended until May 31, 2019. The EEO-1 is an annual federal survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report. The survey requires company employment data to be categorized by race/ethnicity, gender and job category. The filing of the EEO-1 report, is required by federal law per Section 709(c), Title VII of the Civil Rights Act of 1964, as amended; and §1602.7–§1602.14, Title 29, Chapter XIV of the Federal Code of Regulations. Details and instructions for EEO-1 filers, including the exact date of the survey opening, will be forthcoming. Filers should refer to the EEO-1 website in the coming weeks for updates on the new schedule.