About a month before my post is due, I start thinking about the topic that I want to write about. For me, choosing the topic is sometimes the most difficult part of writing. Luckily, one of my students unknowingly helped me pick a topic for this post. Recently in my business law class, the topic of tattoos at work came up. Specifically, the student wanted to get a tattoo on their forearm. They were concerned about whether their ink would hinder them in getting a job after graduation.
Research shows that at least 23% of college students have at least one tattoo. So the question of whether a tattoo will prevent a college graduate from finding their dream job is certainly relevant. Many businesses have no problem with hiring employees with visible tattoos. Others, however, see tattoos as unprofessional. They may have policies specifically prohibiting their employees from showing tattoos while at work.
Speaking From Experience
For those who know me, my view of tattoos is obvious.I am a fan of ink, having both of my arms filled with Japanese style tattoos. In my opinion, employers who make a hiring decision based solely on whether a person has a visible tattoo are considerably narrowing their pool of candidates. However, as a lawyer, my expertise is the law. I am not an expert of whether it makes good business sense for a company to have policies regarding its employees and their tattoos.My interest lies in whether it is legal for an employer to discriminate against an employee because the employee has tattoos.
To couch my student’s question regarding tattoos in legal terms:
- Is it legal for an employer to refuse to hire or to fire an employee because of the employee’s tattoos?
- Is it legal for an employer to adopt policies requiring employees to cover tattoos while at work?
My answer is to both questions…it depends.
Tattoos are not a protected classification
There are no federal laws making it illegal for an employer to refuse to hire, refuse to promote, or even fire someone based on the fact that person has tattoos (with a few exceptions as noted below.) Having tattoos is not a protected classification under federal law. The federal employment anti-discrimination statute, Title VII of the Civil Rights Act of 1964, only prohibits discrimination based on one or more of the protected classifications set forth in the law.
The protected classifications are sex, race, color, national origin, and religion. Therefore, on its face Title VII does not prohibit an employer from taking adverse action against an employee or potential employee because they have tattoos. However, as with most legal questions, the answer is not as clear cut as it may appear. Some tattoos may be based on a person’s religion; and religion is a protected classification under Title VII. Also, if an employer adopts policies regarding tattoos, the employer must be careful. They must enforce the policy in a manner that does not discriminate against any of the protected classes under Title VII.
Dress codes and grooming policies
Generally, employers have the right to impose restrictions on their employees’ appearance and attire worn while at work. Courts recognize that employers have a legitimate interest in their employees presenting a professional appearance. Businesses may implement dress and grooming policies they feel are appropriate to promote their brand, image, values, or mission. Employers have a good deal of latitude in establishing workplace dress codes, including rules regarding tattoos. However, even though it is legal for an employer to adopt such policies, the employer must be careful. They must mplement the policies in a way that does not discriminates based on any of the protected classes under Title VII.
Religion and tattoos
If an employee whose religious belief or tradition requires them to have visible tattoos, an employer must make a reasonable accommodation for that employee. In a 2005 case brought by the EEOC, an employee claimed his employer fired him for having a tattoo of a religious text encircling his wrist.
The employee worked as a server at Red Robin, a restaurant chain, whose policy required servers to cover their tattoos.The employee practiced the Kemetic religion, an ancient Egyptian faith. During a religious ceremony he received small tattoos encircling his wrist. The wrist tattoo was an inscription in Coptic (an ancient Egyptian language). The tattoos express his servitude to Ra, the Egyptian god of the sun. When asked by his employer to cover the tattoos, he refused. He explained that, in his religion, it is a sin to intentionally cover them. Doing so would signify a rejection of Ra.
Title VII requires employers to make reasonable accommodations for sincerely held religious beliefs unless it causes undue hardship to the business. In the case between Red Robin and the EEOC, Red Robin argued that any exceptions to its dress code policy would undermine the chain’s wholesome image. The court rejected this argument. Red Robin settled the case agreeing to pay the employee $150,000.
Discriminatory enforcement of otherwise legal dress code policies
Although there is no legal protection for employees with tattoos, if an employer enforces a personal appearance policy in a manner that discriminates against one of the protected classes, the employer could run afoul of Title VII. For example, in 2010, a former Starbucks’ shift manager claimed Starbucks fired him for having visible tattoos. he claimed that Starbucks retained a female employees with tattoos. If true, this would be gender discrimination under Title VII.
Another example would be if an employer requires its Hispanic workers to cover their Spanish-language tattoos because it believes they might be perceived as gang-related. The employer’s action in that case would be prohibited discrimination based on the workers’ national origin. To avoid liability with respect to any policy, an employer must enforce its policy in a non-discriminatory manner.
Protection under state and local laws
Federal law is not the only source of law that protects employees. State and local government also adopt laws in this area. As with federal law, there are no state laws or local ordinances of which I am aware specifically protecting someone from employment discrimination based solely on the fact they have tattoos.
However, there is a growing number of states, counties and municipalities that go further than the federal anti-discrimination employment laws. The District of Columbia, Madison, Wisconsin, and Urbana, Illinois each have laws on the books banning discrimination in employment based on a person’s physical appearance. Whether these new laws protecting employees against discrimination based on physical appearance will specifically apply to tattoos remains to be seen.
Robin E. Clark
Clinical Assistant Professor of Business Law
