Not All Tattoos are Created Equally: Workers’ Rights and Body Art

Could your tattoo cause you to lose a choice position? It depends. Laws regarding body art and ink have expanded in the last decades, but employers still reserve the right to require that some workers in certain positions hide their artwork. What if the tattoo is in an impossible-to-hide location?

As tattoos have become more popular across the country, employers are being challenged to keep page with a more dynamic society. As the public moves toward acceptance, businesses are typically pushed forward. When approaching issues like tattoos in the workplace, business leaders typically err on the side of caution. Historically, businesses have discouraged exposed tattoos out of fear that customers and clients would find them offensive.

Tattoos Are More Commonplace Than Ever

According to a study conducted by the Pew Research Center, more than 40% of adults between the age of 18 and 29 have at least one tattoo. Of those young adults, more than 50% have an additional tattoo. The number of tattooed adults in the United States has grown exponentially over the last decade, and where body art was one considered counter-cultural, it is accepted as commonplace among working-age young adults.

Statistics support the notion that there has been a change in acceptance for tattooing, and in the same Pew study, they found that 10 years ago only 10% of adult between 41 and 64 had tattoos. Even with these societal changes in acceptability, businesses can still choose not to hire a job candidate because of a tattoo. In only rare cases would a termination be considered illegal or discriminatory.

Employer Rights Vs. Discrimination

Research and polling have established that the number of employment-aged Americans with tattoos is increasing, which means businesses will be faced with choosing between adhering to a dress code and attracting the most qualified employees to fill positions.

Employers are protected from most tattoo-related termination discriminatory cases. Courts have established that employers have the right to create an appropriate dress code for their daily business operations. Body art and tattoos fall into the same category as shoes, shirts, or jewelry, and unlike in discrimination cases, tattooed individuals are not a protected class. Those who fall into protected classes can object if they can prove they were passed over for promotion.

In cases of tattoos preventing upward mobility, the employer has the right not to promote employees into higher level management jobs that fit their ascribed dress code for the new position. However, it’s important to mention that there are some instances where tattoos are protected. If the tattoo is part of an established religious practice or tenet, then the employer must make reasonable adjustments to accommodate individuals.

Securing Legal Representation on Discrimination Cases

If you choose to file a suit and claim discrimination because you were fired or lost a promotion because of a tattoo, then you may have difficulty finding a lawyer to represent you in your case. Many attorneys are aware that an employer’s right to establish and execute a dress code supersedes an employee’s desire to display body art.

As an employee or job candidate, there are situations when losses incurred because of body art, tattoos and piercing are considered discriminatory. If you think your situation qualifies for religious protection of if you are an employer that needs help creating an appropriate dress code, then please contact the employment law attorneys with The Law Offices of Cohen and Jaffe, LLP.  We have attorneys who are knowledgeable in the areas of employment law and discrimination.

Sources:

• All Business – Tattoos in the workplace: What’s an Employer to Do?
• Daily Mail – Woman is fired 30 MINUTES after being given her dream job because company feared the intricate tattoo on her hand could ’cause offence’

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