Dec200908
Tattoos & Employment Discrimination
02:02 PM
wing tattoo.jpg
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Last Friday, the US Air Force rescinded a new ban on tattoos visible on a recruit's right "saluting arm."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. I wrote a great deal about it for Needled.com but those posts did not survive its demise so I'll break down some big issues for ya here.

The first time I wrote about discrimination and body art was for BMEzine in 2004 called "Employment Discrimination: Be Careful What You Sue For" [yes, my bio info for the article has surely changed!] Since that article, there have been new developments, but start there for a more detailed primer on federal job discrimination laws.

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 [mentioned in my 2004 article but had not yet been decided]. 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.

BUT ...

virgin tattoo.jpgWhen 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. Hell, if they can plunge nations into mass recessions, they can certainly tell you to hide your tattoos (most of the time).

But also think of the flip side: Should businesses like tattoo studios or punk clubs be forced to hire chino-wearing preppies without an ounce of ink? Shouldn't businesses who cater to a certain group be able to freely create an image to attract that group (if they do so within the law)?

Feel free to leave your thoughts in the comments section.
24 Comments

The whole argument needs to back up a step, before you even get to the applicant's rights to be tattooed the employer needs to show that the tattoos really are relevant and negatively impact job performance - this never seems to get properly challenged but simply accepted and then we go straight to things like covering up, etc.

And, no one is ... See Morebeing forced to hire anyone - that argument is disingenuous at best. Just because you can't discriminate based on something doesn't mean you have to hire anyone just that you actually need a good reason instead of an unacceptable prejudice (acceptable prejudices will still get by as always though).

As for tattoo shops forced to hire the non-tattooed. In those situations being tattooed is an obvious advantage / benefit for job performance making those applicants preferred but still not ruling out the non-tattooed. Again, there is no forcing going on just the requirement of decisions being made for better reasons than silly prejudices



Excellent points as usual, oh Green One, but I have a few points in response:

First, I agree wholeheartedly that employers should show that tattoos are relevant and negatively impact job performance. For example, call center employees can say that customers don't see them so what would be the big deal.

But addressing your point on things never getting properly challenged, the reason for me not doing so is that employers' arguments for not hiring tattooed people are standard ones that have stood up over time and still do even with tattoos "going mainstream" -- that is, stereotypes of tattooed people as marginal, criminal, untrustworthy ... they still exist today and business fear hiring people who can be perceived this way by potential customers/clients.

As for the word "forced," yes, I used that word flippantly in this context but indeed employers have been mandated by the courts to hire people whom they discriminated against so use of the word is not wrong.

In the context of tattoo studios, should such a law ever exist that appearance based criteria can never be factored into hiring decisions, if not having tattoos is the sole reason for not hiring an otherwise qualified candidate, hypothetically, the shop could find itself in a law suit either compelling hiring or paying out.

But beyond hypotheticals, we both agree that hiring decisions and dress codes should not be made based on silly prejudices, so no argument here.



The only way those 'standard ones' (employers arguments) get dispelled is by constant challenge over time - they won't just fall on their own. Precedence is powerful, especially in the law, but should not be an automatic concession. At this point, we all basically know that the majority of those stereotypical claims are bullshit and we have better evidence than ever to fight them. Attack the foundation, do not give them that premise without a fight ever again.



Can't argue with that but how do you propose such changes?



In the round robin case, wasn't covering up the tattoo a "Reasonable Accommodation" ?



I mean Red Robin



I guess I could become a professional plaintiff. I am qualified (perhaps overly so) for most jobs that would be guilty of this sort of discrimination, lets start collecting applications and see what happens...



Personally, I believe when you make the choice (and it is solely your choice) to be visibly tattooed, you make the choice to be discriminated against. You can't force the world to accept you for who you are. If you plan on working in a retail based environment, you have to accept the fact that 70% of the population is unmarked and may not approve of yours. I did a brief part-time stint at a costco after relocating and after a few months sweating it out in long sleeves, i knew the retail life was not for me. i am currently a happy computer programmer working for the state (who doesn't care what i look like as long as the work gets done well). Life is about choices. Really want that neck tattoo? Don't plan on a nice corporate career. It would be nice if that weren't the case, but it is. Maybe in a few generations it will change, but i doubt it. Thank you for letting me post my rant of the day.
~br



bil just stated my thoughts much more coherently than i could so i'm just gonna second what he just said.

jdL



Bil - the law has long since gone past having anything to do with real responsibility and choice but beyond my cynicism on that point I think it is important that you don't just just concede (effectively rolling over and surrendering) that that is the case as you put it. It won't be different in generations (or ever) unless people start working for it now. Discrimination via tattoos is all but indefensible (lacking in almost any technical merit) and only gets by mainly because people still let it.

In fact, it has long since been (demonstrably - I am thinking back decades with some examples)the case that it simply is not true that you cannot have public tattoos and a nice long successful corporate career but those who do it don't get the press because we focus on those continuing the negative stereotypes as if they are representative of the whole



I keep wondering when we're going to see the first visibly tattooed politicians in office - I think it's going to be quite a while.

I was a little surprised about the US Air Force tattoo ban thing but I think that this has more to do with military psychology than specific prejudice against tattoos. Military organisations the world over put a hell of a lot of effort into making all their personel look the same, and tattoos compromise this. One of my friends is in the British Army. Tattoos were pretty much accepted in his squadron until a bit of a craze started (as often happens). He and few friends invested in a few big pieces, and any further tattoos were banned. It just felt like the tattoo subculture that was developing was a little bit too individualistic for the military.

As for the wider situation with employers and tattoo prejudice, the anarchist in me sees it as another example of mean management types bullying employees, or being overly fussy. As Bill points out, if you get heavily tattooed, you leave yourself open to prejudice, so you need to be aware before you even walk into an interview that you're probably going to have to try that little bit harder to get the job. This sucks, but things have changed with regards to attitudes towards tattoos, and will continue to change if we all pull in the right direction and don't allow ourselves to be bullied.



saying that getting tattooed is choosing to be discriminated against sounds a bit too much like dressing nicely is asking to be sexually harassed - it reeks of blaming the victim. getting a tattoo is not unacceptable behavior, baseless discrimination is. The focus needs to be kept on those who are acting badly and its not the people who simply want to decorate their own bodies, it is the ones telling others what to do or not do with their bodies



you make a good point, Lizardman. I suppose i separate tattoo discrimination from say, racial discrimination because you are not born with tattoos. But, discrimination is discrimination, and it needs to be dealt with. Employers are the ones who suffer by making blanket judgements on what is acceptable to thier clientele. And, probably for the most part out of laziness, companies would rather pass on a tattooed individual than deal with customer backlash. Hopefully, as this generation has made being heavily tattooed more acceptable and visible than ever, it will become less of an issue with the general populace.



[i totally forgot to hit the "submit" button last night and johnny kowalski seems to have beaten me to my point, but here it is...]

there's a lot here to digest and to respond to, but i'll start with the first three 'graphs...

as far as the military goes - the haircut, the standard-issue uniform, even just the basic practices/conditions of basic training are all designed to strip the individual of... well... individuality. there's no surprise there, i would hope. i'm sure we've all heard time and time again from men and women in the military that their job is to function within their unit, as a part of a larger entity - there's no room for individuality.

so, considering that this level of conformism and/or homogeneity is tantamount to very nature of the armed forces - i'm actually amazed that there has been a lift (or at the very least a lessening) of tattoo restrictions in the past couple of years.

aw, hell, who am i kidding? we're in the middle of some ugly and unpopular wars right now and, as the great Bill Hicks said, "anyone dumb enough to want to join the military should be allowed to sign up."



One of the arguments for tattoos in the military is that they tend to be conformist and pro-military acts, the pieces are overwhelmingly pro-service and identify with it. Denying tattoos is tantamount to saying don't cheer for the home team, only serving to cause conflict and resentment for no reason. Military service is a special case though, particularly in legal terms since you explicitly sign away many rights as opposed to civilian law where they still pretend the government doesn't claim to own your body so as not to unecessarily disturb the herd



I did not get my tattoos to be descriminated against.
I am a Red Cross volunteer , I have been featured in their public service ads showing my tattoo, The tattoo was a plus.
I am a city employee, My city employer was very proud of my efforts for the Red Cross. No one cared about the tattoo.
I have a nyc tattoo health department certification I have been unable to get a job in a tattoo shop.I guess that the jobs are not in that market.
Sometimes, I think things just work out that way.
But they are changing.



I'm not saying that the discrimination should be in anyway accepted - I don't think that people who get tattooed do so to be discriminated against, it's just a sad fact of life that this happens. But, as Ginger points out, it's not always a problem, and things are changing.

Getting work in a tattoo studio seems like such a complex issue that it feels like it deserves another discourse entirely, mostly because the market is so oversubscribed.



thank you



Am not going into politics :) Long life to freedom of speech :) Just wanted to say! this tattoo is wonderful! Really inspiring! I hope your book sells well :)



I am a server at Red Robin in Colorado. I have my nose pierced and several piercings in my ears which I do cover with my hair. I was told I could not wear my nose piercing, but get this... we have a hostess working there that is allowed to wear her nose piercing and has an industrial piercing in her ear. So I asked about this and the manager said but you are a server and serve the guests but what I don't understand is that the hostess is the first person the customer sees when they come in the door!? I think it is discrimination. This is a free country and I think a person has a right to be themselves. I even see older people with piercings and tattoos this is 2010 not 1950!!



I really dont see the big deal with tattoos and piercings.. im a female with a bunch of tattoos a few piercings . i have a sqeecky clean record and all. most of my tattoos are visiable.. im a manager!!i dont have to hide them at all i even get complaments from customers on them.. i dont see why employrers cant see pass tattoos , look at the background first !! peoples background well tell alot !!



IN OUR WORK POLICY DRESS CODE BY THE UCLH HOSPITAL IN LONDON UK ,ITS SAYS:
5.4 Visible tattoos are 2b discouraged & where present should not be deemed offensive to others.Where they R deemed 2B offensive they should be appropiately covered."

I THINK THIS IS PREJUDICE AND DISCRIMINATION TOWARDS PEOPLE WITH TATTOOS.

Wonder if they know what offensive and unoffensive is?



I find myself coming to your blog more and more often to the point where my visits are almost daily now!



Great article. There's a lot of good information here, though I did want to let you know something - I am running Redhat with the current beta of Firefox, and the look and feel of your blog is kind of flaky for me. I can read the articles, but the navigation doesn't function so great.





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