For HOA manager, free speech protection has limits

Can HOAs require managers to cover tattoos deemed offensive?

Question: Our homeowner association manager has several "politically incorrect" tattoos on his neck, arms, hands and face depicting unacceptable symbols. He's proud of the message he's conveying through the tattoos. Owners say they resent being involuntarily subjected to his beliefs and political messages by way of his tattoos. We're afraid to say anything and the board is a bunch of scaredy cats. Should owners say something and whom should we say it to?

Question: Our manager has the phrase "My God is Awesome" embroidered by a tailor on all his clothing. He takes every opportunity to preach and flaunt his beliefs. Many of us are offended by this. What can be done?

Question: Our manager wears T-shirts, hats and jackets with the flags and militant sayings of a Third World country. These slogans and pictures are offensive and in our face. He wears them to board meetings. Our vendors also don't like it and have asked to meet with a board member instead of the manager. If any comment is made about his attire, he accuses the person of being racist. These hostilities take away from performing the business of the association. Too much time is spent arguing with him. The management company owner refuses to do anything about this; he says it's a free speech issue. Do we have to put up with this?

Answer: A homeowner association is a business and as such it should have a dress code written into its management contracts. Companies that cannot abide by your terms should not be hired or should be terminated. That includes those that fail to properly manage their own employees. You do not have to put up with this behavior, and this is not a free speech issue.

Freedom of speech is an extremely important right in our country but it is not without limits. Courts have frequently upheld restrictions to speech that are not content-based but merely dictate the time, place or manner of that speech.

Specific to employers, the courts and the U.S. Equal Employment Opportunity Commission regularly uphold the right of an employer to impose reasonable restrictions on the dress, and even grooming, of employees so long as those restrictions are equally applied and not related to "protected characteristics," such as gender, race, religion, disability and military status. Prohibiting the visible display of tattoos on all employees and prohibiting long hair or facial hair on all male employees have both been upheld as reasonable policies.

In all of the cases raised by the questions above, however, it appears the management companies' employees have turned themselves into walking billboards espousing their own belief systems.

The reasons why one manager has tattoos are his personal and private business, which he can proclaim to the world outside the scope of his employment. The same can be said for the other managers' clothing, which conveys their personal beliefs.

While working for the management company that represents an association, employees' attire emblazoned with religious or political slogans not only detracts from the operation of the business, it may be misperceived as representing the collective views of the homeowners association, its owners or the board directors who were responsible for hiring them.

Even if there were no complaints, a wise board is aware of circumstances that would potentially be offensive. Best practices require the board to minimize any risk to the association and avoid any potential of incurring liability or lawsuits, regardless of the source.

Not every offended party will feel comfortable speaking up or broaching the issue, especially if they live or own property there. The repercussions for individuals who complain of such issues could become a hotbed of dissension among neighbors.

There can certainly be no claim by employees against management or the association for prohibiting clothing with patches, embroidery and slogans. "Preaching and flaunting" one's personal beliefs or religion is not what a manager is hired to do and get paid for during working hours.

The management company should be required to implement policies for appropriate dress. If the company doesn't, then the association needs to find a new management company.

It is not unreasonable to require employees to cover tattoos with sleeves, bandages or some other creative solution when they serve the public. There is nothing racist about requiring employees to keep their personal views to themselves while they are working, especially with the public.

So long as the policy applies to all T-shirts, hats and jackets, all tattoos, all embroidered messages on articles of clothing — and not just to the ones that may be offensive — there should be no problems.

Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.

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