HR Hot Topics: Tattoos & piercings in the dental practice

February 11, 2015

Can you name the 12 different types of popular ear piercings?¹Yes, you read that correctly, there are indeed 12 different ways to pierce an ear. Here’s the bigger question: How many are acceptable under your appearance policy?

As 42% of the adult workforce now has tattoos and 61% of American adults has a piercing other than on the earlobe², body ink and piercings continue to be an HR Hot Topic in the workplace. Dentistry is no exception.

Most dentists understand that they have the right to establish appearance guidelines; however, they can get into trouble in the application of those policies. The majority of my dental clients prefer an appearance policy that calls for “professional dress and moderate personal grooming and adornments.” Most of my clients also take a position against visible tattoos and have a policy limiting piercings to the earlobe.

Here are two scenarios that several clients have dealt with, along with my recommendation for how to handle these situations safely and legally.

#1 “My administrative assistant came in today with a small nose stud piercing. I’m actually ok with it, but another employee is upset because our policy does not allow her to wear her eight earrings. If I allow the nose ring, do I open myself up to all kinds of exceptions to the policy?”

#2 “My hygienist has a tattoo I didn’t know about. It was brought to my attention by a coworker who was told to cover up a large tattoo she has on her forearm. The hygienist’s tattoo is a very small flower on her ankle that is only visible when her slacks ride up while she’s sitting down working on a patient. I’m ok with the hygienist’s tattoo. Must I require all tattoos to be covered up or take the risk of being sued for discrimination?

Here’s the bottom line question: “Do I have some discretion in applying my appearance policy?” The answer is YES! Yes, but keep reading so you fully understand how to do that legally and safely.

In the case of the nose stud in scenario #1, a small, single diamond stud in the nose could reasonably be considered ‘moderate’ while eight studs along the entire outer ear could reasonably be considered ‘immoderate.’

Therefore, the employer could allow the nose stud and not the eight earrings. The key is to be sure that your decisions do not impact employees in a way that would rise to the level of discrimination. For instance, don’t allow tattoos and piercings for women, but not for men. Don’t give more latitude to younger employees than your older employees, since body ink and tattoos are more common in adults under 30. Apply your policy consistently across all ages.

In example #2, it can also be seen as reasonable to allow a small, inconspicuous ankle tattoo and require that a larger forearm tattoo be covered up. In that same spirit, you might also reasonably consider a small wrist or ring tattoo to be acceptable under the policy, while still requiring the forearm tattoo to be covered.

I discussed this issue with Michael Meehan, an attorney in the health law group of Fox Rothschild LLP. Michael encourages his clients to develop policies that can be applied flexibly, but also consistently. He noted, “It is certainly a best practice to apply a policy consistently, but this does not mean an employer cannot use his or her discretion. That said, before exercising that discretion, the employer should take some time to think about how it may be interpreted. You never want your discretion in applying that policy to be construed as discrimination based on a protected class.”

Use your discretion. If you feel that the nose stud or the ankle tattoo do not meet your moderate standard, you can require that both be covered or removed (in the case of the nose stud) while at work. But if you prefer to allow one and not the other, use “consistent discretion” in applying your policies and you will be able to minimize your risks in this area.

This topic continues to trend as companies are beginning to relax their stance toward piercings and tattoos. We’ll take another look at how and why big business is responding in a future post.

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¹Popular types of Ear Piercing

12-Orbital

11-Auricle

10-Anti-tragus

9-Daith

8-Conch

7-Industrial

6-Snug

5-Tragus

4-Lobe

3-Earlobe gauging

2-Helix

1-Rook

²Stawpaw.com statistics