Tattoos & Employment Discrimination
Wing tattoos by Vincent Hocquet (featured in Black Tattoo Art).
Last Friday, the US Air Force rescinded a new ban on tattoos visible on a recruit's right "saluting arm." The ban had come into effect November 25th and met with a great deal of scrutiny in the press as 26 recruits were soon turned away from basic training because of their tattoos, tattoos that were acceptable under the original standard.
According to the Air Force Times, that old standard is the following: "Official Air Force policy bans only tattoos that are obscene or do not fit a 'military image,' that cover more than one-fourth of a body part, or are above the collarbone."
This Air Force policy has renewed interest in the debate over tattoo policies -- not just in the military -- but in the workplace.
Here are some basic points on tattoos and workplace appearance policies:
Companies have a great deal of discretion in enforcing their workplace appearance policies as long as they don't discriminate on the basis of religion, sex, race, color, or national origin under Title VII of the US Civil Rights Act.
Even if you claim your tattoos are protected for reasons such as religion or national origin, that doesn't mean you can wear a swastika on your neck and serve customers with abandon. Courts will often look to see if an employer offered you "reasonable accommodation" -- that is, whether they found a way to eliminate the conflict between your tattoo and their work requirements without undue hardship to the business.
Perfect example is in Cloutier v Costco. In this case, a cashier at the mega-wholesale chain sued because she was not allowed to have visible facial piercings. She claimed that her eyebrow piercing was part of her religion as a member of the "Church of Body Modification" (CoBM). After a lengthy court battle, the US Court of Appeals in Boston did not rule on whether CoBM is a bona fide religion but found that Costco met its burden of showing that it had offered Cloutier a reasonable accommodation of her religious practice: a clear plastic retainer that took the place of the eyebrow jewelry. Therefore, no conflict.
When an employee has been outright fired for visible religious tattoos and offered no accommodation, it has not gone so well. The Red Robin restaurant chain paid out $150,000 to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission when it dismissed a waiter for not covering up a verse from an Egyptian scripture tattooed on his wrists, a noted practice of his Kermetic faith. As part of the settlement, Red Robin also had to change its policies to accommodate religious beliefs.
Workplace dress codes should be clear and reasonable, but again, employers can often mandate cover-ups or not hire someone because they are tattooed. Granted, in the US where over a third of the population is tattooed, it doesn't make much business sense to keep a large portion of the work pool away, but companies are allowed to make bad decisions and get away with them.