Generally, employers make the call on whether they feel it’s appropriate for workers to have visible tattoos, says employment law attorney Mark Fijman of the New Orleans office of the firm Phelps Dunbar LLP. But there are some exceptions.

For example, in an EEOC lawsuit, a Red Robin employee had visible tattoos with religious significance that he refused to cover. He requested an exemption from the tattoo policy, but the restaurant didn’t accommodate him. The employee was eventually fired for not complying with company policy, and the EEOC claimed religious discrimination. Red Robin settled the lawsuit for $150,000. Employers should be sure their tattoo policies aren’t discriminatory before enforcing them.

Having a policy that prohibits visible tattoos may be considered discriminatory in certain situations, as tattoos are a form of self-expression and are often deeply personal to the individual, explains Program Manager Karin Philippczyk.

If the policy disproportionately affects certain groups, such as those with cultural or religious tattoos, it could be seen as discriminatory. The policy should include the scope, rationale, exceptions and guidelines for what happens when the policy is enforced.

I believe a case could be made that could be discriminatory, says HR Manager Ellen Huelmann. Tattoos could be part of one’s culture and/or religion, in the same way that nose piercings, turbans, having beards, wearing a hijab, etc., are.

As a general rule, I don’t think it’s good policy to police someone’s physical appearance. However, any extremes should be addressed on a case-by-case basis, with consideration given to the role of the employee.

It could be, says Senior HR Manager Emily Granholm. When creating, implementing and enforcing policies about tattoos in the workplace, HR should consider and be mindful of a few things:

• Business needs: Limits or restrictions on visible tattoos should be based on actual and legitimate business reasons, such as the position requires the individual to interact face to face with clients and a clean and professional image serves the business well.
• Consistency: The policy needs to be enforced consistently. For example, if “Johnny” wasn’t told to cover up his scary flaming skull tattoo, and “Cindy” was allowed to leave her butterfly and flower tattoo exposed, that may land you in hot water with a Title VII gender discrimination claim because the policy was inconsistently enforced.
• Religious considerations: Be flexible with options to offer reasonable accommodation for individuals due to religious reasons. Also, consider the verbiage used in the policy to address the sensitivity of an individual having tattoos due to a religious belief. Any workplace appearance policy cannot put restrictions on an employee’s sincerely held religious beliefs. If an employee’s tattoo is a form of religious expression, Title VII requires employers to provide a “reasonable accommodation” for the employee’s religious beliefs and practices unless doing so would constitute an undue hardship for the employer.