Can I Be Fired For Piercings That Were Okay Until They Changed The Dress Code?
An AOL Jobs reader asks:
You probably know about the concept of "grandfathering" that you hear sometimes when laws or rules change. The idea is that people who were in compliance with the law before it changed are allowed to keep things the way they were. While this is common with things like zoning laws, I've never heard of an employer "grandfathering" an employee in on any rules change.
So I've been trying to find out if an employer has the right to fire an employee for piercings or covered/nonvisible tattoos if at the point of hire the employee was within the dress/personal appearance code. I have piercings (two in both ears, all plugs all less than 3/8") and no visible tattoos and when I was hired I was in code. Two weeks ago the dress policy changed to make my piercings no longer in code.
When I was hired I took out my lip ring, it wasn't to code. By code we are allowed to have one stud per ear (my second set is small and filled with a plug that makes them appear to not be there at work) with a face no larger than a 1/2", and now the code specifically states that employees with gauged ears must remove their jewelry before work. If that had been a condition of employment when I was hired I would not have taken the job since I have spent time, effort, and money to properly gauge my ears to the size they are. The jewelry I prefer for my ears is in gauged sizes. Now my preference might cost me my job if I refuse to let my ears shrink.
Keep in mind I understand the concept of at will employment and will probably be job hunting soon just to avoid the conflict if it becomes an issue. That said and set aside, I am asking mostly out of curiosity and partly because I like my job and would like to figure out the legal standing for the issue.
If your piercings are just a personal preference, then you're probably out of luck. There are limited circumstances where a dress code change might be illegally applied.
Here are some examples:
- Religious discrimination: If the piercings relate to some religious requirement or belief, then you might have a religious discrimination claim. Your employer might have to accommodate your religious belief, especially since you've been wearing the items with no hardship on the employer to date.
- Disability discrimination: I can't imagine how, but let's say the gauges had some medical purpose. Your employer might have to grant an accommodation under the Americans With Disabilities Act and let you wear them.
- National origin discrimination: If the gauges are something you wear as part of your culture, and the dress code impacts people of your culture and not others, then maybe there's an argument for national origin discrimination. This would be similar to banning dreadlocks that had been allowed when only one Jamaican employee in the workplace has the dreadlocks. If the policy is directed at a particular national origin or race, you might have protection.
- Retaliation: If you're the only person affected by the change, and the rules change came right after you blew the whistle on something illegal, made a worker's compensation claim or took Family and Medical Leave, you might be able to show that the rules change was done to retaliate against you illegally.
I'm betting none of these apply to your situation. You might ask if they'd consider grandfathering you under the rules. If not, you may have to either take the gauges out or find another job.
Why don't employers grandfather employees whose appearance was okay under older rules? I have no answer. Employers do lots of arbitrary stuff.
If any managers or HR people can explain this one to me, I'd love to hear it.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.
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