There is a new flavor of discrimination suit being lodged by employees – the lifestyle discrimination suit. Employees alledge discrimination when their “lifestyle choices” are prohibited in the workplace. These include lifestyle choices such as tattoos, piercings and cross-dressing. These can be particularly problematic for restaurant owners where a disproportionate amount of the job pool in this skillset arguably has some lifestyle choices in their appearance. However, customers often have a negative impression of these workers, especially in terms of cleanliness and sanitation.

Employers are free to establish workplace appearance standards. The key is to have well-crafted and consistently applied written policies in place on these issues. Employers have to be careful not to have policies that unfairly impact certain national origins, genders or religions because these are classes protected under Title VII employment discrimination laws. Employers must also be sure to use clear language when drafting written policies. Terms such as “excessive” (to describe the tattooing or body piercing) are largely subjective and should be avoided in your personnel policies. Different people have different standards, especially across the generations.

If you have any issue with an employee’s appearance, raise it at the inception. Waiting several months to enforce the policy reaks of selective enforcement. This can lead to problems defending your policy after long periods of apparent acquiescence.

Rules are important in the workplace, however, employee morale could be at issue. When crafting a workplace policy, employers should try to balance the business culture and consumer expectations with employee rights to self-expression. There should be a reasonable basis for workplace policies prohibiting these lifestyle choices in the workplace, not simply a way to further am employer’s personal prejudices and morales. There must be a clear relationship between the policy and a bona fide identifiable detriment to the business reputation and bottom line.