By Jasmin Rojas and WAKEUP CALL
Turn on the television at any given time you will probably either find a reality show about tattoos, or a celebrity flaunting his or her body art. Even the famous tattoo artist, Ed Hardy, has a popular clothing and perfume line. Indeed, tattooing has become one of the fastest growing industries in the United States, successfully appealing toward the mainstream culture.
What was once limited to bikers, ruffians and drunken sailors is now the “it” thing amongst soccer moms. In fact, a 2009 survey conducted by the Journal of the American Academy of Dermatology found that 36 percent of Americans age 18 to 29 have at least one tattoo. A Harris poll in 2012 found that 1 out of every 5 adults has at least one.
That’s a whole lot of ink!
Today, tattoos are considered a form of body art. It’s more than just a sign of rebellion or a rite of passage. Instead, many find that tattoos are a form of self-expression.
So, given their wide-spread acceptance, a question still remains. Are tattoos the “career killers” of before? Are companies willing to hire applicants who have visible tattoos?
It seems that, despite their popularity, hiring managers may still be influenced by the past stigma associated with tattoos. While hiring managers may not have any personal aversion to tattoos (and may have some themselves), companies who want to portray a certain image are afraid of alienating their customers.
To illustrate, a recent study conducted by the University of St. Andrews in the United Kingdom, found that most hiring managers agreed that visible tattoos carry a stigma that may damage the company’s professional image. The study interviewed recruiters in 14 different organizations, including a hotel, bank, city council, prison, university and bookseller in order to gain a broad view of the their opinions on tattoos.
One recruiter explained that an applicant’s visible tattoos are the first thing that is discussed when the person has left the interview. Others expressed concern that their customers may perceive tattoos as “dirty,” “abhorrent,” “repugnant,” and “unsavory.” The only employers that did not express great concern over visible tattoos were employers that did not have a great deal of customer/public contact.
Can tattoos be banned at work?
The rapid popularity of body modification has caused some companies to adopt policies that either prohibit or place restrictions on visible tattoos and other body art. Basically, companies are striving to have their employees exhibit a professional and business-like appearance. Nevertheless, because they are so commonplace, there is some confusion as to whether employers can prohibit their workers from having visible tattoos, and if so, to what extent. To compound matters, employees find any policy that restricts their freedom of expression as an invasion of their personal lives. Accordingly, the prohibition of visible body art has resulted in a plethora of employment discrimination claims.
There is no federal law governing employee dress codes, including tattoos. Employers may implement whatever dress guidelines they feel are appropriate, as long as they do not discriminate on the basis of gender, race, religion, disability, or any other federally protected status.
In general, courts have ruled that private employers may implement dress standards for employees as long as they can provide business justifications for them, and as long as the standards do not affect one group of people more than another. (So, for instance, you could not allow your employee who was a former marine to display his semper fi tattoo, but require your female employee to cover up hers).
But beware! Sometimes tattoos may implicate a religious belief. For example, there are religions, such as Buddhism and Hinduism, that use the process and the outcome of tattooing as an expression or representation of their beliefs. In that circumstance, an employer could only ban the tattoo if it demonstrates an undue hardship.
The U.S. Supreme Court has ruled that an undue hardship, in the context of an accommodation for religious belief, is one that would require an employer to bear “more than a de minimis cost.” This is a much easier standard for employers to meet than that required for a reasonable accommodation under the Americans with Disabilities Act (ADA). The ADA defines an “undue hardship” as one that would require “significant difficulty or expense.”
One man’s art is another man’s folly
What constitutes a hardship is still not clearly defined. At least one federal court has ruled that an employer did not have to provide the accommodation preferred by an employee because it created an undue hardship for the employer. In that case, the employee, who had a pierced eyebrow, was a cashier who frequently interacted with customers. She claimed that her religious belief required her to wear her body piercings.
The employer’s neutral dress code had been implemented to cultivate a “neat, clean, and professional image” —a business determination within the employer’s discretion, according to the court. The employee refused to accept any accommodation from the employer other than a complete exemption from the employer’s policy prohibiting facial jewelry.
The court reasoned that the exemption she demanded was an undue hardship because it would adversely affect the employer’s public image. The employer accommodated another cashier’s religious beliefs by allowing her to use clear plastic retainers in place of her eyebrow jewelry.
On the other hand, a federal district court in Washington state ruled that an employee could proceed to trial with his claim that his employer’s requirement to cover his tattoos constituted religious discrimination. In that case, the employee claimed he had sincere religious beliefs that prevented him from covering up the tattoos.
Although the employer in this case claimed that allowing employees to show their tattoos would adversely affect its public image, the court noted that no customers had complained about any employees’ tattoos and that the size of the wrist tattoos in question suggested that few customers had noticed the tattoos. The court noted that this was in contrast to the facial piercings in the case described above because they were “imminently visible.” The employer subsequently agreed to settle the case.
Do you really want to fight the current?
History has demonstrated that fighting current trends may turn out to be a lost cause. The best practice for employers in this area is to base dress codes on objective criteria such as workplace safety and professional image and to be prepared to make reasonable accommodations for employees with dress and grooming-related requirements that do not adhere to the dress code, but do not present health or safety concerns. Ultimately, decide whether your fear of tattoos is reasonable.
If your employees have no customer contact, then a ban on tattoos may be too stifling. You may also want to decide whether you need an ultimate ban on all tattoos. Some employers have found success in implementing a policy where employees only have to conceal body art that is, for example, offensive or frightening to children. Finally, it is also advisable to include a statement in the employee handbook or written dress code reaffirming that the company will comply with applicable legal requirements to provide reasonable accommodation for employees’ religious beliefs.
Employers today are facing tough questions as they try on different dress codes to find the right fit. Because the development and implementation of dress codes necessarily involve the Americans with Disabilities Act, as amended and Title VII, it is important to have an understanding of these issues.