Ask the Lawyer, Tit for Tat?

TIT FOR TAT? WORKER’S REFUSAL TO COVER TATTOO COSTS HIM HIS JOB

QUESTION: I work at a large retailer. Several weeks ago, I got a tattoo of the Virgin of Guadeloupe on my forearm. She is the patron saint of Mexico; I wanted to show my solidarity with the many Mexicans (and others) being deported. My boss told me to cover the tattoo or be fired. I wore a long-sleeved shirt for a few days, but when the AC at work broke down, I was just too hot – and my tattoo was uncovered. When my boss saw the tattoo, he fired me immediately. Is there anything I can do?

ANSWER:     There is usually nothing illegal about a private employer establishing an appearance code for its workers, or banning tattoos. Employers may find that firing or refusing to hire workers based on an appearance code that bans visible tattoos may make it harder to find workers – especially younger workers.

            According to a Wall Street Journal report, nearly half (47 percent) of American millennials have at least one tattoo, and some 37 percent have two. Millennials make up 30 percent of the work force.

            The problem is that while tattoos have been embraced by millennials, they are still regarded as by many as unprofessional – and maybe a little bit seedy. A 2018 study published in the Academy of Management Proceedings found that applicants with extreme body tattoos were “perceived as less competent and committed than applicants without body art” and were less likely to be hired, and – if hired – received a lower starting salary.

            Some employers have addressed this issue by allowing some tattoos (for example small tattoos, tattoos visible on the arms and neck) and not others. Private employers are allowed to pick and choose permissible tattoos – as long as this exercise of discretion does not result in a policy that has a disparate impact on a protected class (race, sex, color, country of origin, age, religion, etc.) or that violates a bona fide religious requirement.

            For example, a ban on the display of any tattoos might impact Hispanic or African American workers – who, like Millennials, are more likely to have body art – and could possibly be challenged as a violation of Title VII’s prohibition against discrimination on the basis of race or color, but it would be a hard case to prove. Allowing men to display tattoos, but not women (or vice versa), could also implicate protected rights.

            Employers may also ask workers to cover tattoos that express or are associated with a political viewpoint with which the employer disagrees – or which may be offensive to customers. In a 2000 case, the court upheld an employer’s requirement that an employee cover a “religious” tattoo – a cross in support of the KKK – even though other tattoos were permitted. Swartzentruber v Gunite, 99 F Supp 2d 976 (ND Ind. 2000). A business catering to a liberal clientele might legitimately as a worker to cover a MAGA tattoo; and a conservative business could ask an employee to cover a “Dump Trump” tat. (Note that a public employer could not discriminate against tattoos on the basis of their political content, as this would be viewed as state action, and a possible violation of the First Amendment.)

            In the context of religion, at least one court has ruled that in order for a worker to have a protected right to wear a tattoo, the worker must be able to show that the display of the tattoo is a required element of the religion and, even then, this interest will fall if the employer can prove that allowing the tattoo will present an undue hardship. In EEOC v Red Robin Gourmet Burgers, 2005 WL 2090677, the federal court for the western district of Washington ruled in favor of an employee who stated his religion required him to keep two small wrist tattoos uncovered – but the employer’s claim of hardship there was suspect where the tattoos had been uncovered for over six months without incident.

            The bottom line for employers is that if they want to pick and choose among permitted tattoos, the standards must be clearly established and must be consistently enforced.

            The bad news for you is that if your employer had a consistently enforced “no tattoo” policy, your display of the Virgin was in violation of that policy. Although the Virgin is a religious icon with political significance, there is nothing in the facts you describe to indicate you were required by your religion to display your tattoo.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

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