Drawing the line on tattoos in the workplace
Twenty-five years ago, the only tattoo I remember seeing was the one on my father-in-law’s left bicep. It was a simple black anchor, a reminder of his Navy days, that hadn’t fared well over the years. Its once-sharp lines had morphed into blurry tentacles, an embarrassment that he kept covered with shirtsleeves even during the dog days of summer.
How times have changed. Ink art is now de rigueur, with nose, lip and cheek piercings often part of the package. You may not like the look or believe it’s wise given the bill that will arrive with advanced age, but that’s never stopped fashion before. It’s all the rage and it’s coming soon to a coffeehouse near you.
But what happens when the look goes beyond the baristas and it reaches your security company? If a sales rep’s stud earring gives way to a ring through the lip, or an operator’s ankle shamrock begets an arm’s length of more colorful ink, how will it affect co-workers? More importantly, how will it affect your customers?
The problem isn’t a lack of professionalism—it’s the image of a lack of professionalism. You can nip the problem in the bud by having a workplace appearance policy, but you’ll need to tread carefully to avoid running afoul of anti-discrimination laws. Cross that line and you could end up in court.
A great primer the topic was provided via email last week by Judge Ruth Kraft, chairwoman of the Labor and Employment Group at Kirschenbaum & Kirschenbaum. Here’s what she had to say:
Body art and piercings are personal expressions. However, in general, you have a great deal of discretion with respect to appearance standards. You can require that ‘ink’ and piercings not be visible. There is no legally established right for workers to display them in the workplace. Unless the employee can establish that they are indicia of religious or racial expression, tattoos and piercings are not protected under federal anti-discrimination laws.
Therefore, you are entitled to establish policy. The best policy is one that explains itself in terms of reasonable business needs. Just as a manufacturer may require assembly-line workers to wear protective clothing and to tie back his or her hair for safety reasons, a pediatrician may ban hanging earrings or nose rings which could be torn out by a recalcitrant youngster or prohibit nail extensions which could harbor bacteria.
The typical approach in establishing policies is a midground which limits restrictions to employees who have contact with the public and requires that the tattoos and piercings not be visible. This is the most practical to implement since it doesn’t restrict employee self-expression but simply limits what they can show at work. A policy which provides that, if an appearance standard is violated, the employee will be asked to correct it, including going home to change into clothing that covers the tattoos and/or piercings, puts workers on notice as to the consequences of their actions. The policy should be enforced just as you enforce other behavior policies. If your rules call for progressive discipline, then you should follow the same steps for violation of the appearance policy, beginning with verbal warning and proceeding to written warning, etc.
Caveat 1: If the tattoo or piercing represents a genuine religious or racial expression, then it may be protected under the federal anti-discrimination laws. The rights of observant Jews to wear yarmulkes in the workplace or of Sikhs to wear their turbans and beards have been upheld in the courts, except where such outward manifestations of belief could pose health or safety risks in particular occupations. There is limited case authority on this point, but I believe that the courts will differentiate between a volitional outward manifestation of belief (i.e., a tattoo of Jesus on one’s arm) which is not religiously mandated, and tattooing which is required of members of a bona fide religious or racial group.
Caveat 2: Be sure to enforce your policy consistently to prevent claims of unfair application or discrimination against a member of a protected class under the law.
For more information on workplace appearance policies, or to update or create one for your company, contact Kraft at RKraft@Kirschenbaumesq.com. For advice on how to remove tattoos, go to www.tattoohealth.org.