Published in the New Hampshire Business Review
Q: Joe is hiring for a customer service position and is down to 2 equally qualified potential candidates: a man and a woman. Joe did not notice any visible tattoos when he interviewed the male candidate; however the female candidate has a tattoo on her ankle and wrist. Her ankle tattoo is heart shaped and the tattoo on her wrist says, “Praise the Lord.” Joe thinks that tattoos look unprofessional and does not want to hire the female candidate because of her tattoos. Permissible?
A: While Joe is entitled to have personal opinions about tattoos, he has to make sure that acting on those opinions does not expose the company to liability. In this case, there are a couple of risk areas to consider.
Both candidates are equally qualified, yet Joe does not want to hire the woman because she has tattoos. This could trigger an allegation of gender discrimination if the company has hired men with visible tattoos in the past. Before making the decision not to hire the woman, Joe should check with human resources, company policies, and other managers to determine whether the company has a ban on hiring any individuals with tattoos.
Even if the company has a policy banning tattoos, that blanket rule is likely to be found to discriminate against individuals based on religious affiliation if the policy does not have an exception for religious beliefs or cultural practices. Tattoos that have a cultural theme are also protected, such as tattoos worn by Asian or Pacific Islanders who use tattoos to show their “coming of age” or familial representation. In this case, the woman’s tattoo on her wrist has a religious connotation. If the woman is not hired because of her tattoos, she could allege that she was discriminated against because of her religious beliefs.
Let’s assume that Joe puts his beliefs aside and hires the woman regardless of her tattoos, but asks her to cover up her wrist tattoo while at work – would that be permissible? The answer depends on whether the woman has a bona fide religious belief and, if she does, whether her religious beliefs prohibit her from covering the tattoo. If her religion prohibits her from covering up the tattoo, then she could ask the company for an accommodation: allow her tattoo to be visible. The company would have to determine whether allowing the tattoo to be visible would cause potential loss of revenue or extraordinary expense: an undue hardship. Assuming that the company could quantify the potential loss or expense, it would not have to accommodate the employee’s request. Undue hardship is a very high standard that requires quantifiable data and analysis, therefore companies should consult with employment law counsel before making the decision not to accommodate.
Dress Code/Appearance Policies
So does this mean that companies can never require employees to cover up tattoos? No, but the policy must be flexible enough so that it does not create liability by being discriminatory on a religious or cultural basis. The dress code policy can ban offensive tattoos as long as long as the policy language describes explicitly what constitutes an ‘offensive’ tattoo (e.g., profanity, inappropriate body parts, or the depiction of certain acts generally considered to be in poor taste, or facial tattoos (as long as they are not related to a cultural belief). The policy should state a clear, specific business reason for requiring the cover-up policy and not just ban all tattoos for no reason. Employees will be more likely to accept the policy if a valid, business related reason is given. Valid reasons may include: maintaining a more uniform look, customers’ level of comfort in dealing with employees with tattoos, and importance of customer perception of the business. Remember that if the company’s reason for banning tattoos or covering them up is because of customer perception, then the company should have evidence of customer perception in case that reason is challenged. An assumption about customer perception will not support the company’s reason for adoption of a policy.
Practical Business Considerations
The fact is that tattoos are more common among certain age groups and rarer among other age groups: 36% of 18-25 year olds, 40% of 26-40 year olds, 11% of 50-64 year olds, and 5% over 65 have at least one tattoo. (Pew Research Center, Research Date 12/11/13; The Harris Poll #22, 2/23/12). As those individuals in age groups that have a higher percentage of tattoos become responsible for hiring decisions, there may be a greater tolerance for visible tattoos in the workplace. It might be more practical when deciding this issue to take into account: the prevalence of tattoos among certain age groups, the general level of acceptance of tattoos among customers, the amount of customer interaction that the individual would have, the importance to the company of diversity in the workplace, and, most significantly, whether it is worth the very real possibility that the company misses out on hiring a super star employee because of a heart tattoo on her ankle.
There is no one-size-fits-all policy and therefore, it is worth crafting a policy with experienced employment counsel to ensure that the company’s goals are met and that potential liability is mitigated.
Beth Deragon is an attorney in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Beth can be reached at [email protected] or at (603)628-1490. She also contributes regularly to www.employmentlawbusinessguide.com.