According to a 2015 Harris Poll, twenty-nine percent of Americans aged eighteen and older have a tattoo, with nearly half of Millennials (47%) and over a third of Generation X (36%) having at least one. Although tattoos have become more mainstream and socially acceptable, some employers still may be hesitant to hire an applicant with a tattoo or may wish to require current employees to cover up visible tattoos.
If visible tattoos are a concern in the workplace, employers should have a written policy addressing the issue. For example, an employer might require employees to cover visible tattoos while working with customers or clients. Like prohibiting employees from wearing t-shirts or requiring employees to wear a uniform, an appearance policy requiring employees to cover tattoos is legal unless it violates laws prohibiting discrimination, such as Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination on the basis of protected characteristics including gender, race, national origin, sex, and religion. Other federal laws prohibit discrimination based on disability and age. And many state and local laws protect additional characteristics, including marital status and sexual orientation.
Employers must keep in mind that even the most well-intentioned 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. In a reasonable accommodation situation, therefore, employers must make an exception to their typical dress code.
An appearance or grooming policy similarly can be illegal if it is applied in a discriminatory manner. For example, if a male employee is required to cover up his skull tattoo, but a female employee is not required to cover up her “cute” butterfly tattoo, the male employee could claim that he was being discriminated against due to his gender. Employers therefore must consistently apply any policy or dress code.
With this in mind, any employer who is implementing or enforcing policies regarding tattoos in the workplace should remember the following.
- Avoid blanket bans on tattoos. Limits on visible tattoos should be based on legitimate business reasons, such as projecting a neat, clean and professional image to customers and clients and should be flexible with options to offer reasonable accommodation for religious reasons.
- Any policy regarding the covering of visible tattoos should be consistently applied to avoid discrimination claims arising from inconsistent application.
- Managers and supervisors must be trained to be sensitive to the potential significance of visible tattoos, not only to the bearer of the tattoos (as the tattoo may have religious significance) but also to coworkers who may be offended by the symbolism of another employee’s tattoos, such as an African American employee who may point to the uncovered Confederate flag tattoo on a white coworker as evidence of racial harassment.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding dress or grooming policies. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
About the Author
Amy McAndrew is MEA’s Director of Legal and Compliance Services and has over twenty years of experience as a labor and employment attorney.
