New Jersey lawyer focusing on special education law and employment law


Tattoos, Facial Piercings, and Employment Discrimination

In “Mohawks, Tattoos, and Facial Piercings…  in School,” a reader posted a question about whether a person who is a member of The Church of Body Modification may be protected from discrimination in the employment context.

First, let’s talk about The Church of Body Modification and its members. The reality is that very few people have ever heard of The Church of Body Modification. This is not surprising. According to a 2010 court order, there are approximately 3500 members in the United States who are members of this Church.

According to the Church of Body Modification’s Frequently Asked Questions on its website, members of the Church are spiritual and believe in God. Its members practice body modification rituals “with [a] purpose to unify our mind, body, and soul, and to connect with our higher power.”

So, it seems that the Church of Body Modification is a non-denominational religion in which members of a subculture join to find a community of like-minded people who believe that tattooing, piercings, and other body modifications “strengthen” the connection between mind, body, and the divine.

There might be more to it, but this is really all we need to know for purposes of this article.

With that background, there was a case involving a Costco employee who was a member of the Church of Body Modification and was terminated because she refused to take off her eyebrow ring to work. Let’s briefly review this case.

In 1997, Ms. Kimberly Cloutier began working for Costco. At that time she had multiple earrings and several tattoos, but no facial piercings.

Eyebrow piercingSometime between 1998 and 2000, Ms. Cloutier got an eyebrow piercing, though this does not seem to have been motivated by a religious belief. It is not even clear if she was a member of the Church of Body Modification by this point.

In early 2001, Costco implemented a “no facial jewelry” policy to improve its professional image.

When Costco began enforcing its policy in mid-2001, Ms. Cloutier explained for the first time that she was a member of the Church of Body Modification and that her religion prohibited her from removing her eyebrow piercing.

Ms. Cloutier subsequently filed a complaint, alleging that she was discriminated against on the basis of her religion under Title VII of the Civil Rights Act of 1964 and state law. For whatever reason, Ms. Cloutier made a decision not to return to work until the complaint was resolved. Approximately two weeks after the complaint was filed, however, Costco terminated Ms. Cloutier for unexcused absences and for failing to follow the dress code.

At a mediation session, Costco offered Ms. Cloutier her job back, provided that Ms. Cloutier agreed to do one of two things: replace the eyebrow piercing with a clear plastic retainer (to prevent the hole from closing) or cover the eyebrow piercing with a bandage. (pp. 6-7) Ms. Cloutier refused either accommodation because she believed that removing or covering the eyebrow piercing violated the tenets of the Church of Body Modification.

The case went to federal court and Costco won.

On appeal in 2004, the United States Court of Appeals for the First Circuit noted that there was nothing in the tenets of the Church of Body Modification that required that “body modifications had to be visible at all times or that removing body modifications would violate a religious tenet.” (p. 5) As such, the accommodations Costco proposed would not “violate any of the established tenets” of the Church of Body Modification. (p. 9)

Ultimately, the court affirmed the lower court’s opinion, holding that Costco offered a reasonable accommodation, and that creating an exception in the no facial jewelry policy would create an undue hardship for Costco. In other words, Costco must maintain a neat, clean and professional appearance to attract and retain customers; and creating an exception for Ms. Coultier would adversely affect that image. (p. 22)

The court also noted that this case is not the only type of its kind; other courts “have long recognized the importance of personal appearance regulations, even in the face of Title VII challenges.” (pp. 20-21) For a short list of cases involving religious discrimination in the employment context, see this document.

Contrary to Wikipedia’s pithy summary, this case was not decided on First Amendment or religious freedom grounds. Moreover, the court did not even address the issue as to whether the Church of Body Modification was a valid religion.

Compare this case with the 2010 case involving a 14-year old honor roll student who was a member of the Church of Body Modification and was expelled from school. In that case, the court ordered the school to permit the student to return to school.

Fortunately, not all employers discriminate against employees who have visible tattoos and facial piercings. Surprisingly, many upscale stores like Apple and Whole Foods employ individuals who are heavily tattooed and pierced. And they are always so friendly and knowledgeable too!

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