Protecting the Company’s Public Image, Quirky Question # 17

Quirky Question # 17:

We run a retail clothing firm.  Our goal is to cultivate a youthful, preppy image.  We prohibit “facial jewelry” with the exception of earrings.  This prohibition is set out in our Employee Handbook.

One of our employees insists on wearing “facial jewelry,” displaying various facial piercings.  Can’t we prohibit this practice?  Can we tell our employee to choose between her facial jewelry and employment with our company?

Dorsey’s Analysis:

Companies have a legitimate interest in, and right to control, their public image. Companies, therefore, can regulate employees’ attire and appearance.  Few would question whether companies have the right to regulate the type of clothing employees wear, so long as the regulation is reasonable and applied uniformly (no pun intended).  For example, employers may legitimately require employees to wear shoes, or otherwise regulate footwear (whether for safety or other reasons).  Employers may regulate the types of clothing worn by employees (e.g., no shorts, no bathing suits, no tank tops, etc).  Employers may require certain uniforms.

Similarly, employers may regulate the types of “facial jewelry” worn by the employees while they are at work, particularly where the piercings are inconsistent with the image the company seeks to project.  In my view, your company is within its rights to prohibit facial jewelry and could force an employee to choose between continued employment and this particular form of self-expression.

On the other hand, a thoughtful client of mine once remarked in regard to a male employee with particularly long hair: “It’s not what’s on his head, it’s what’s in it that matters to me.”  Do you want to fire an otherwise high-performing employee simply because he/she has a piercing in her nose or eye-brow? Your call.

A middle ground your company may wish to consider could be the adoption of a more flexible policy, differentiating between the types and number of facial piercings.  Of course, the problem with any “flexible” policy is that it requires more thoughtful and even-handed enforcement, with correspondingly more careful training of those who enforce the policy.  You do not want to create a situation where differential enforcement leads to claims of discrimination, with the facial piercings policy identified as merely a “pretext” for discriminatory discharge decisions.  Similarly, you do not want to create a policy where the exceptions have swallowed the rule.

Interestingly, your fact pattern is similar to a case that arose several years ago (Cloutier vs. CostCo).  In that case, the employee claimed that her facial piercings were related to her religious beliefs, albeit with a non-mainstream religion.  She claimed that she was member of the “Church of Body Modification.”  The federal Court of Appeals for the First Circuit did not buy it, affirming the trial court’s dismissal of the case on summary judgment.  The appellate court concluded that CostCo had the right to control its image, which extended to determining the type (and quantity) of permissible facial jewelry.

Would the same result would have ensued if the employee’s appearance or attire were connected with a religious institution somewhat more widely recognized than the “Church of Body Modification?”  Another question for another day.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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