Tattoo Cover-Up: Can Company Dress Codes Ban Tattoos in the Workplace?

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By Tonya Wells – Can your employer’s dress code ban you from showing your tattoos at work or force you to wear cover-up make-up over them? To make a long story short, yes they can, as long as the tattoos are not worn for religious or cultural reasons.

A long time ago, tattoos were only seen on either the enlisted, the free spirits of the 60’s, on hard-core criminals, or on Hell’s Angel types. But that is certainly not the case anymore. Today, more and more people are proudly sporting tattoos in very visible areas of their bodies.

A few interesting facts about tattoo popularity:

• 21% of all adults have at least one tattoo (Harris Poll)
• 40% of adults ages 18-29 have at least one tattoo (Pew Research Center report)
• 38% of adults ages 30-39 have at least one tattoo (Harris Poll)
• 10% of adults ages 41-64 have at least one tattoo (Pew Research Center report)
• 50% of individuals who have one tattoo also have more than one (Pew Research Center report)
• 18% of individuals who tattoo themselves have more than six tattoos (Pew Research Center report)

Legal Dress Code Policies

So, what can your employer legally enforce? The following dress code policies are legal for an employer to implement because the courts ruled in 2008 that employers’ rights to enforce tattoo cover-up take precedence over the employees’ desire for self-expression where tattoos are concerned unless the tattoos serve a cultural or religious purpose.

1. First, they should conduct an informal survey of their customers and employees, and store these results somewhere in case they are later needed for lawsuits. These surveys should be used to gauge client and employees’ opinions of inked appearances. If the results show that they aren’t bothered that much by tattoos, a tattoo cover-up dress code policy may be desired more by management than it is actually desired by clients and employees (which may be a reflection more of prejudices than actual social opinions). This might make the corporate policy difficult to uphold in court. So, inquire whether or not your employer has conducted a survey.
2. Tattoo cover-up policies must not affect significantly more of one gender, ethnicity, or other group within your company than others, or this may be a potential discrimination issue.
3. Body art policies must be equitable and consistent for all employees, from the assembly line to upper level management, or a discrimination claim can be validly filed.
4. Offensive tattoos may be banned in the dress code policy as long as the policy explicitly describes 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).
5. A tattoo cover-up policy should state a clear, specific business reason for the ban, and not just ban all tattoos for no reason.
   1. A valid reason can be to maintain a more uniform look. The Army will soon by implementing a tattoo cover-up policy for this very reason.
   2. A stated, valid business related goal will also be better accepted by most employees than a ‘because we said so’ reason.
   3. The courts have ruled that employers may ban all tattoos in the workplace if they have a legitimate reason to do so. These reasons include:
      1. Customers’ level of comfort in dealing with employees with tattoos, and
      2. Importance of customer perception of the business.
      3. The tattoo dress code policy may not infringe upon religious or cultural practices unless your company can prove that tattoos will create an ‘undue hardship’ upon their business that will cause either potential loss of revenue or extraordinary expense to make an exception. Examples of religious or cultural tattoos include, but are not limited to:
         1. Asian or Pacific islanders who use tattoos as part of their ‘coming of age’ or familial representation
         2. African tribal religious tattoos
         3. Tattoos of crucifixes, Jesus, Mother Mary, or other Catholic or Protestant images
         4. Tattoos received as part of a religious practice or ceremony.

Corporate Dress Code Policies – Will They Stand Up In Court?

Different companies have different attitudes regarding tattoos. Some companies insist that all tattoos be covered up, while others only require offensive tattoos to be covered up.

There are also other very well-known brands that couldn’t care less if tattoos are covered up, including Bank of America, ZB Sports in Philadelphia, publicly traded Apollo Group, and the University of New Mexico (which allows one of their professors to sport a full tribal tattoo on his face).

Other companies such as the Mayo Clinic, Cleveland Clinic, and UCLA Health System all require their employees to cover-up their tattoos to ensure a consistent, professional appearance while working.

Court Cases in the US

Because of tattoo popularity, more and more people are pushing the envelope and wearing things to work that do not cover up their tattoos. Or, they are getting tattoos in places that are physically impossible to cover up (like their face or hands).

There are many conservative corporations that still have a very low tolerance for this, so we are starting to see several cases go to court to test the corporate tattoo policy.

So far, Red Robin is the only company in the US (that I could find) who has taken this to court where the case has received a verdict. (http://www.eeoc.gov/eeoc/newsroom/release/9-16-05.cfm).

The case with Red Robin was resolved in favor of the employee filing the lawsuit on the basis of religious discrimination. The employee was wearing tattoos that were given as part of a religious ceremony, and thus, the company was infringing upon the employee’s freedom of religious expression by forcing the individual to cover up the tattoo.

Court Cases in Canada

Ottawa Hospital (http://www.millerthomson.com/en/publications/newsletters/charities-and-not-for-profit-newsletter/february-2013/can-employers-ban-tattoos-and-body-piercings) was taken to court by their employees because they banned tattoos in the workplace, stating that it made their patients uncomfortable to be around people covered with tattoos. There was no survey conducted to back up this position. So, when the case was taken to court and the plaintiff’s attorney conducted a survey, they found that patients had a ‘meh’ attitude about whether or not their physician or nurse came in sporting neck tattoos or an arm sleeve.

In the end, this case was thrown out because Ottawa Hospital could not prove that the appearance of tattoos damaged their image in the minds of the patients of the hospital. Laws in Canada, similarly to the US, state that if a corporation forces employees to cover up tattoos, it must be because it infringes on the comfort level of the corporation’s clients or because it damages the image of the corporation in some way. So, as suggested above, it is highly recommended that you conduct an informal survey with some recorded results prior to implementing a tattoo cover-up policy in your Employee Handbook.

Summary

In summary, your employer can implement a dress code policy that forces you to cover up your tattoos. However, corporations who wish to implement a tattoo cover-up policy need to be very careful to not only research the validity behind their believed reason for implementing it, but also need to conduct due diligence with their corporate attorney to ensure that the wording is detailed enough that the policy does not target certain genders, ethnicities, or religious groups, and that it explicitly states the business reason for implementing the policy.

For Further Reading About Employment Law Basics, Check Out These Titles on Amazon:

1. Essential Guide to Federal Employment Laws
2. Employment Law: A Guide to Hiring, Managing and Firing for Employers and Employees
3. Create Your Own Employee Handbook: A Legal & Practical Guide for Employers

References:

1. http://www.forbes.com/sites/rachelhennessey/2013/02/27/having-a-tattoo-and-a-job/
2. http://blogs.findlaw.com/free_enterprise/2013/09/tattoo-policies-at-work-5-tips-for-employers.html
3. http://smallbusiness.chron.com/laws-tattoos-workplace-15395.html
4. http://www.millerthomson.com/en/publications/newsletters/charities-and-not-for-profit-newsletter/february-2013/can-employers-ban-tattoos-and-body-piercings
5. http://eplirisk.com/body-modification-new-protected-religious-practice/