An Employer’s Guide to Avoiding Tattoo Nightmares

Perhaps your parents warned you as a teenager that if you got a tattoo, you would never get a good job. But millennials have turned this adage on its head.

Tattoos are no longer taboo. Nearly half of millennials have at least one tattoo, and the workforce is becoming more inked than ever before. As the popularity of tattoos (and tattoo reality-TV shows) continues to grow, employers may wonder whether to permit the visible display of tattoos in the workplace. Here are some tattoo policy tips for both private and public employers.

Tips for Private Employers

If you are a private employer, you may generally adopt dress code policies that require employees to cover their tattoos at work if their display could harm the company’s public image or otherwise interfere with your business. But you should also take precautions to prevent discrimination claims that could arise from a tattoo-concealment policy. These precautions include: (1) stating a legitimate business reason for adopting the policy; (2) applying the dress code equally to all similarly situated employees; and (3) enforcing the dress code consistently.

Any tattoo-concealment policy should be compliant with local, state, and federal anti-discrimination laws, and employers should be careful that the policy does not disparately impact protected classes. For example, if only employees of a certain nationality or gender are disciplined for failing to cover their tattoos, then those employees might allege that the policy is pretext for illegal discrimination. The same would be true if an employer refused to hire recruits of certain race or religion, allegedly because of their tattoos.

As a private employer, you should also be sensitive to the possible religious import of tattoos. Some religious practices are expressed through permanent or henna tattoos. While some employees with religious tattoos may not mind covering them up at work according to a reasonable dress code policy, others may not agree.

Private employers should be aware of one unique case where a religious tattoo and a dress code policy clashed, and the court ruled against the employer. In E.E.O.C. v. Red Robin Gourmet Burgers, Inc., (West. Dist. of Washington 2005), an employee alleged that a restaurant discriminated against him based on his religion when it fired him for refusing to cover religious tattoos on his wrists. The restaurant had a dress code policy that required tattoos to be covered to promote its “family-oriented” public image. But the employee alleged that covering his tattoos would be a sin according to his religion. The court declined to dismiss the case, finding the evidence was disputed enough to require a trial. Ultimately the case settled, but it demonstrates how, in limited circumstances, an accommodation for a religious tattoo might be necessary.

Tips for Public Employers

If you are a public employer considering a tattoo-concealment policy, you also should take precautions to prevent discrimination, as explained above. But equally important, you should consider your obligations under the U.S. Constitution. While there is no express right to have a tattoo in the Constitution, there are Constitutional rights that may be implicated if, for example, a tattoo is expressive or religious (First Amendment), or if tattoo restrictions disproportionately affect people of a protected class (Fourteenth Amendment).

The First Amendment prohibits the government from abridging the freedom of speech. Importantly, “speech” does not have to be spoken — it also includes symbolic or expressive speech. And arguably, tattoos can convey religious, political, or other important messages to the public. A court considering whether a tattoo restriction violates the First Amendment will ask: does a tattoo constitute “speech”; and, if so, does this specific tattoo qualify as protected speech under the First Amendment?

Whether a specific tattoo would be considered protected speech depends on the nature of the tattoo. Generally, political and religious speech are afforded the highest constitutional protection; obscenity warrants no protection; and other types of speech, like commercial speech, fall somewhere in between.

Bottom Line

Tattoos are here to stay, and your workforce probably has more ink than you think. If you are a private employer, and covering tattoos is essential to your business, it is important for your dress code policy to be rooted in a legitimate business reason and to be applied and enforced equally. If you are a government employer, you also need to consider your employees’ Constitutional rights. The success of a free-speech challenge to a tattoo-concealment policy will depend heavily on the law in your jurisdiction and the nature of the specific tattoo at issue.

Sarah Stula
Sarah Stula

Foulston Employment Law Attorney