By Jennifer Jabaley, OD
April 25, 2018
Prospective, and current, employees can alter their appearance in a multitude of ways, from blue hair and tattoos to body piercing. It’s important to set standards for your practice, but it’s also important to stay abreast of employment law, so you know what you can, and cannot, ask employees to alter about themselves, and what you can, and cannot, use as a basis for refusing employment.
For the last month we’ve been interviewing for two new staff positions – someone to help out at the front desk and a pre-test technician. When I came upon an impressive resume from a male candidate, I was interested. I felt our female-dominated staff could benefit from a dose of testosterone. However, on the day I interviewed him he showed up with long unruly hair, tinged blue at the tips, and sleeves of tattoos so dense his arms looked reptilian. And while he was well spoken and eager, I could not fathom hiring him.
Our practice is in a southern, small town. Our patient demographic, for the most part, is older and conservative. While the acceptance of tattoos and Crayola-colored hair has risen drastically among Millennials, I’m not certain our patient population would feel comfortable with this display of personality.
What Constitutes Hiring Discrimination?
Research reassured me that hiring managers have the legal right to discriminate against hiring candidates they feel would be inappropriate for their workplace, or offensive, to their clientele. There are many protected classes when it comes to employment law.
Employers are prohibited from discrimination against potential employees based on age, gender, disability, national origin or pregnancy. But there are no current laws that address discrimination against personal hygiene choices including tattoos, piercings, body art or unnatural hair color.
Furthermore, failure-to-hire cases based on discrimination are difficult to prove. The best avenue to protect yourself from being charged with discrimination against hiring someone is to take detailed notes of various reasons the prospective candidate is not the best choice for the job. Legitimate reasons, such as lack of experience or training, will trump a discrimination claim.
What If Your Staff Member Adopts an Unorthodox Appearance?
What happens if one of your current employees shows up one day with a change of personal hygiene? New body art, a face tattoo, excessive piercings or rainbow-colored hair? What rights does an employer have to manage a staff member whose personal appearance may have an adverse effect on the practice?
There are federal laws that include discrimination clauses that form an umbrella of protection against terminating an employee based on sex, race, color or national origin. (Title VII of Civil Rights Act of 1964). Some states have expanded laws that protect against termination due to newfound disability, marital status, medical conditions, and gender and sexual orientation.
To date, however, no policies exist to provide protection against the personal choices of tattoos, hair color, piercings or body art. Therefore, each individual employer has the legal right to create their own documented policy concerning these issues. When a new employee is hired, they should be asked to read and sign the dress and appearance document as part of their terms of employment.
Editor’s Note: It’s best to have an attorney review your staff policies prior to implementation.
Then, if your front-desk employee shows up one day with a new sleeve of tattoos they refuse to cover, or rainbow-streaked hair they will not consider dying, you can say they are in violation of the practice protocol that they signed when they were hired. The employer then is completely at will to terminate their employee if they refuse to abide by the written document of grooming per protocol that they signed.
What If There is No Signed Dress & Grooming Policy?
In the absence of a signed policy, how do you handle an employee who has drastically changed their appearance? I’d advise first taking a moment to really consider the situation. The world is changing in regard to what is deemed acceptable.
However, if, indeed, you feel your patient demographic would not feel comfortable with this new distracting appearance of your employee, take your staff member aside and explain in a straightforward manner, “Susie, your rainbow-colored hair looks young and fresh on you, but while working here, we would request you maintain a more conservative appearance. I realize we don’t have a written policy regarding this, so I don’t blame you at all for not knowing this. As a team, the office manager and I are going to sit down and create a dress code and grooming document that we all feel will work for our office.”
Then sit down and write the policy, consulting with your attorney before finalizing it. And make sure each employee reads it through, signs it and has a copy.
Once you adopt a grooming policy, be sure to apply the guidelines to everyone equally. The only exception to this rule would be if a piercing, or any other physical display, is directly related to a religious practice, which is protected under discrimination laws.
Take time to think about the appearance standards, if any, you want to enforce for your employees, and communicate it well enough that they understand it before altering their look.
Do you have a policy that has been put in writing, and distributed to employees, regarding appearance while working in your office? How do you enforce it? Have you gotten push-back from employees? How do you explain the need for such a policy?