Tattoos used to be considered part of a counterculture. It’s probably a fair statement to say that for years, many people associated tattoos with gangs, bikers, and other groups that were thought to operate outside of the social center. Today, tattoos have gained wider social acceptance and more and more people, men and women alike, have them. People with tattoos work in a variety of industries and hold entry-level jobs as well as top executive positions. So, what’s an employer to do? Is body art a workplace issue? Does having a visible tattoo say anything about an individual that is relevant to his or her job?
In today’s global marketplace, employers are taking more seriously the need to provide a work environment that welcomes employees from many different backgrounds. The competition to attract and retain skilled workers has resulted in corporate cultures that strive to demonstrate the value placed on individual and group contributions. And there is increasing attention paid to offering a company culture and benefit package that supports a variety of lifestyles. Should someone with a visible tattoo be treated any differently?
Depending on what and where the tattoo is, there may or may not be an issue for employers. The laws still tend to support employer dress code/appearance policies in general and employers retain some flexibility in creating rules that require employees to present themselves in a way that is consistent with the employer’s image. But that doesn’t mean that banning tattoos altogether is appropriate. In some cases, it can still violate the law.
Many employers have policies that do not allow visible tattoos. Depending on the employer’s industry and the type of job, this may make sense. For example, the odds are that a four-star hotel may not want the concierge to have large tattoos of skulls and crossbones on the back of each hand. But the same hotel may have less concern if a dishwasher in the kitchen has those same tattoos because direct contact with the hotel’s customers is minimal. From a business perspective, the issue for the hotel is to write a policy that draws appropriate lines between jobs in which visible tattoos may or may not be appropriate.
This example is probably a simple one. It can get more complicated, however, if an employer is not thoughtful. For example, what if a bank employs a valued administrative assistant who never has contact with customers? His desk is located in the corporate headquarters and his interactions are strictly internal. Is it okay if this person arrives at work one day with a star tattooed under his eye? The answer, in part, is dependent on the corporate culture and the bank’s general attitude toward tattoos. It also, however, is dependent on the difficulty in recruiting and retaining good administrative assistants.
The odds are that while the bank may not appreciate a facial tattoo, it’s probably not worth the chance of losing a good employee or not being able to retain a new one by having a policy that would prohibit the tattoo altogether. On the other hand, the bank may be more concerned about a teller with the same tattoo who regularly interacts with bank customers. In that situation, a policy prohibiting the tattoo may be understandable.
In drafting the policies, it’s important to stay focused on the business issues at hand. Policies that prohibit tattoos should not reflect value judgments about tattoos or the people who get them. In fact, many employers would likely be surprised to find out how many current employees have tattoos and simply cover them up at work. So negative assumptions about what tattoos say about the people who have them are very often misplaced.
Issues raised by tattoos can get more complicated when it comes to gender and religion. And employers should be aware of these issues before writing and enforcing policies that prohibit visible tattoos at work. For example, historically, it is likely that more men wore visible tattoos than women. As a result, an interviewer who notices a tattoo on a man’s arm may have no reaction. But more and more women are getting tattoos, some of which are visible, and the same interviewer may have an adverse reaction if a tattoo is visible on a female applicant’s ankle. In this situation, an employer can be exposed to liability for sex discrimination if the presence of the tattoo was an issue in making the hiring decision.
Religious tattoos can pose even more challenging questions. What if an employee who works directly with customers has a tattoo around his wrist and the company has a policy that prohibits visible tattoos in customer service positions? Is it okay to require the employee to wear sleeves that are long enough to cover the tattoo? The answer is: it depends.
If the tattoo is part of a sincerely held religious belief or practice, and that practice or belief prohibits the employee from covering the tattoo up, the employer may need to allow an exception to the “no visible tattoo” policy. That’s because employers are obligated to reasonably accommodate sincerely held religious beliefs and practices unless doing so poses an undue hardship. In that situation, it is a good practice to ask the employee about the tattoo and find out whether there is a religious basis for it that prohibits them from covering it.
Managers should coordinate with human resources before having that sort of conversation because if it is not handled properly, the manager could say something unintentionally that exposes the company to liability for religious discrimination. But done properly, the manager may find out that the employee is able to cover the tattoo. If not, this employee may be permitted an exception under the policy as a reasonable accommodation. And doing so as an accommodation will not result in having to allow all employees an exception under the “no visible tattoo” policy.
The key for employers is to have a written policy that employees are required to read and sign, and then to enforce that policy consistently. That way, employees are not able to claim that the policy was applied differently to them. And the policies should be based on sound judgment that is in the best interest of the business. That means that employee and customer interests also need to be considered before the policy is drafted.
Work with your human resources department to develop written dress code/appearance policies that are reasonable and can be enforced consistently. Check with human resources and/or legal counsel before talking with an employee about covering a tattoo unless it is clear that the tattoo has no religious significance and having the employee cover the tattoo is consistent with your policy. And remember, making assumptions about the qualifications of people who have tattoos is not only unfounded, it may result in discrimination claims against your company. A woman with a tattoo of a skull on her arm is no less entitled to be judged based on legitimate business factors than a former U.S. naval seaman whose arm is adorned with a tattoo of a ship’s anchor.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.