Written By: Jennifer Doherty, Inspiring HR
There was a time when companies looking to ban visible tattoos in the workplace had a relatively easy time of it. After all, employees with tattoos have no specific legal protections under Title VII. And yet, the EEOC has filed a number of lawsuits against companies that prohibit visible tattoos.
Once again, a seemingly straightforward employment law matter is growing increasingly murky.
The Tattoo Generation
Tattoos are a subject on which there are strong opinions. Some people view body art as an important medium for personal expression, but like other artistic mediums, not everyone will see the beauty in another’s tattoo.
Tattoos are far more mainstream than they used to be. According to a 2017 Harris poll, 47% of millennials and 36% of GenXers have a least one tattoo. But for people above the age of 40, that number drops to 10%. This generational divide has the potential for conflict, where one strongly held view about workplace “appropriateness” conflicts with another about “personal expression”.
Courts have enforced a company’s right to determine its brand reputation, as well as the connection between employee appearance and that brand image. However, it’s critically important for employers to consider if a policy prohibiting visible tattoos, one that may have no clear foundation in business need, can make an organization appear stuffy, inflexible, and unappealing. Even the United States military – the epitome of discipline, order, and conservatism – loosened its restrictions on visible tattoos in 2007.
Employers may have a knee-jerk, negative reaction to tattoos, but these reactions are often based on stereotypes rather than fact or actual business need. Remember that the millennial generation is 65 million strong and represents the largest pool of workers and customers this country has ever seen. And based on that Harris poll, more than 30 million of them have at least one tattoo.
With recruitment, retention, and business growth strategies in mind, it may be time for companies to revisit their visible tattoo prohibitions. But these aren’t the only reasons to take another look.
The Legal Issues with Inflexible Tattoos Policies
People who voluntarily receive body art are not a protected class covered by Title VII. This doesn’t mean, however, that employers can ban all visible tattoos without making room for legally necessary exceptions.
Title VII does protect employees based on their sincerely held religious beliefs, for example. So, if the employee you hired in the winter suddenly reveals a tattoo when their wardrobe changes to short-sleeved shirts, remember to proceed with caution.
In 2005, Red Robin Gourmet Burgers refused to accommodate an employee’s request for an exception to the company’s policy banning visible tattoos. The employee insisted his tattoos were integral to a sincerely held religious belief, and it was a sin against his religion to cover his tattoos. Red Robin fired the employee, and was promptly sued by the Equal Employment Opportunity Commission, who claimed religious discrimination. The company – clearly sensing a losing case – settled out of court for $150,000 and a promise to revamp their internal policies.
An interesting side note to this case is that the employee had been on the job for six months before he was approached about the policy violation. In that time, he had received positive comments on his performance and interacted well with customers. All of which begs the question, just what message was this company trying to send? That a potentially outdated policy on visible tattoos is more important than customer satisfaction?
Do You Need a Policy?
The answer is, sometimes.
There are valid business reasons for a policy banning visible tattoos. Employees in conservative industries such as banking, for example, would expect such a policy, as would the customers of those businesses.
More importantly, a company can and should protect itself against possible legal claims by banning visible tattoos that are offensive in nature, such as those which are extremist, indecent, racist, or sexist. Additionally, tattoos that pose safety issues, such as gang tattoos, can be prohibited.
Beyond these, the necessity of a policy prohibiting visible tattoos should be considered within the following contexts:
- The type of business.
- The target pool of potential employees.
- The expectations of customers.
Employers should always avoid unnecessarily broad dress code or personal appearance policies that don’t acknowledge the potential need for accommodation. A policy banning visible tattoos can be effective as long as:
- The policy is applied fairly to all employees in similar positions.
- The policy makes exceptions for reasonable accommodations, such as religious observance.
Facial piercings and unnatural hair color are often treated similarly to tattoos, and policies should follow the exact same guidelines to ensure business need and legal compliance, including the same exceptions for sincerely held religious beliefs.
When a Belief is Not Sincere and a Religion is Not a Religion
Religious belief is a frequently requested accommodation, but companies don’t need to accept it without question. Employees only qualify for this exception if,
- Their religion is a bona fide one.
- Their religious belief is determined to be sincerely held.
These aren’t always the case.
Subway Restaurants have a policy prohibiting visible body piercings, a policy that’s commonly accepted in the food service industry based on customer expectations and food safety standards. But this policy was challenged by an employee, who claimed her facial piercing could not be removed due to her religion.
After losing her job for refusing to remove the piercing, the defendant sued her former employer. She claimed the company failed to accommodate her sincerely held religious belief. However, her claim was undermined when it was proven that she’d removed her piercing to gain access to a dance club. The court threw out her lawsuit, ruling in the employer’s favor.
Simply put, an insincere belief carries no legal weight, nor does a sincere belief in a “religion” that is actually not a religion. The EEOC defines a bona fide religion as having “ultimate ideas” about “life, purpose, and death.” It states that “social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII”.
Tattoos are an increasing presence in the workplace, and employers must find a way to address them that balances business needs and legal accommodations.
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This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.