Tattoos at work: What’s OK, and what’s not?
When it comes to tattoos at work, how much power do employers have to give a thumbs up or say no go?
If you don’t know the answer, you’re running the risk of exposing yourself to a possible lawsuit – and legal liability.
The good news: Employers have plenty of leeway to set dress and appearance codes, and as a general rule they can choose to ban visible tattoos in the workplace.
But like many other general rules, this one has exceptions. And when exceptions apply, employers must know how to proceed.
Tattoos at work: The basic rule
In a nutshell: Employers generally can ban visible tattoos at work, but they must be careful to apply the ban evenly and be prepared to evaluate requests for accommodation.
Most frequently, requests for accommodation will be based on religion.
In other words, an employee may object to a generally applicable requirement that tattoos be covered at work on the basis that their tattoos are religious in nature – and that covering them at work would violate their religious beliefs.
If that happens, employers who do not carefully evaluate the request for the accommodation of leaving the tattoo or tattoos uncovered run the risk of violating Title VII, which is a federal law banning religious discrimination.
Evaluate requests diligently
When evaluating the request, there are two main questions to consider:
- Is the request based on a sincerely held religious belief?
- Would granting the request produce an undue hardship?
As to the first question, remember that a belief that is unique can still be religious. Beliefs and practices can be religious even if no one else subscribes to them, the EEOC has advised.
The flip side of that coin is that a personal preference is not a religious belief and is not entitled to accommodation under Title VII. The EEOC provides this example (direct quote, emphasis added):
Sylvia’s job has instituted a policy that employees cannot have visible tattoos while working. Sylvia refuses to cover a tattoo on her arm that is the logo of her favorite band. When her manager asks her to cover the tattoo, she states that she cannot and that she feels so passionately about the importance of the band to her life that it is essentially her religion. However, the evidence demonstrates that her tattoos and her feelings do not relate to any “ultimate concerns” such as life, purpose, death, humanity’s place in the universe, or right and wrong, and they are not part of a moral or ethical belief system. Simply feeling passionately about something is not enough to give it the status of a religion in someone’s life. Therefore, her belief is a personal preference that is not religious in nature.
Tread carefully when making the call on whether a particular belief is a personal belief or a sincerely held religious belief. Social, political and economic philosophies are clearly not religious beliefs. But where the line gets murky, it may be best to err on the side of caution or seek specific legal advice before proceeding.
As to the second question, employers need not grant a religious accommodation if it would result in undue hardship. At the moment, they can meet that standard by showing that the accommodation would cause them to incur a cost that is anything more than de minimis.
Factors to consider include direct monetary costs and the degree to which granting the requested accommodation would burden the employer’s business.
Undue hardship may be established by showing that granting the accommodation would diminish workplace efficiency, infringe on other workers’ rights, or create a safety risk.
Rulings from courts are helpful
Several court rulings in this area of the law are helpful.
In one notable case, a restaurant server refused to cover tattoos on his wrists, saying that to do so would violate his religious beliefs. The restaurant terminated the server’s employment, and the EEOC sued the restaurant on the server’s behalf. After a federal court rejected the restaurant’s argument that the tattoos did not really reflect a religious belief – and that accommodating the request to show them at work would be an undue hardship – the restaurant settled the Title VII case by agreeing to pay the server $150,000.
Note too that although religion will form the basis for an accommodation request in the vast majority of cases, other protected classes, in theory, may also serve as the basis for an accommodation request.
For example, assume for a moment that statistics show people of one race are much more likely to have a tattoo than people of another race. If that is true, people who are more likely to have tattoos are more adversely affected by a policy banning tattoos – and conceivably could claim that a no-tattoo policy discriminates against them based on race.
Key takeaways for HR
When it comes to tattoos at work, here are your key takeaways:
- Employers generally have the right to ban visible tattoos at work.
- Employers must be ready to accommodate a request to display a tattoo at work for religious reasons or for any other reason that is based on membership in another class that is protected by law.
- Train managers on the requirements of your dress code and what the dress code says about tattoos.
- Tattoos, by themselves, are not a protected category under federal law.
- Private employees have no First Amendment right to display their tattoos at work.
A final point that is worth repeating: Make sure your policy relating to tattoos is consistently and evenly enforced. Uneven enforcement is an invitation for a discrimination lawsuit.
Free Training & Resources
Resources
You Be the Judge
The Cost of Noncompliance
Case Studies
The Cost of Noncompliance
Further Reading
The Seventh Circuit affirmed the dismissal of a white employee’s reverse discrimination claim. William Groves is a white athletic director...
What’s the worst-case scenario for an employer that refuses to provide court-ordered relief to a mistreated employee?How about getting tak...
A new OSHA rule – the so-called “walkaround” rule – clarifies that employees may designate a non-employee third party, such as a uni...
When an employee violates a policy but also has complained of discrimination, firing them can get tricky. And when one employer dismissed an...
It’s been a nagging and frustrating question for employers for decades now: When it comes to providing reasonable accommodation for employ...
When one employee experienced racial harassment so severe he was forced to quit, the EEOC stepped in.Driven Fence, a fencing company outside...