In today’s society tattoos have become more mainstream and socially acceptable, but that doesn’t mean that employers must allow or tolerate visible tattoos in a work environment. So, why do discrimination laws not protect tattooed individuals from workplace discrimination?
Title VII of the Civil Rights Act of 1964 is a federal statute which prohibits employers from discriminating against individuals based on race, color, religion, sex, and national origin. 42 U.S.C. § 2000e-2(a). Physical appearance (including body art and tattoos) is simply not a protected category and thus can generally be controlled by an employer’s policies without being considered workplace discrimination. Interestingly, a handful of cities, including Washington, D.C., Santa Cruz, CA, Madison, WI, and Urbana, IL, have enacted certain laws prohibiting workplace discrimination based on “physical appearance.” However, besides these local laws, there is no explicit protection for employees with tattoos.
Where the line becomes blurred is when workplace appearance and dress code policies interfere with above-protected categories. For example, workplace appearance policies may be deemed illegal if they have a discriminatory impact (even if unintended) on a protected class (i.e. African Americans or males) who are being treated differently because they are more likely to have visible tattoos. Additionally, workplace appearance policies cannot put restrictions on an employee’s sincerely held religious beliefs. A dress code policy that prohibits employees from wearing hats or head coverings may constitute religious discrimination against individuals who wear turbans or hijabs for religious purposes. In these situations, Title VII requires employers to provide a “reasonable accommodation” for the religious beliefs and practices of an employee unless doing so would pose an undue hardship, meaning employers must make an exception to their typical dress code for certain employees.
This argument has been extended to tattoo discrimination against individuals whose tattoos are a form of religious or cultural expression. However, these cases have largely failed because employers can simply insulate themselves by articulating a legitimate non-discriminatory reason for their no-ink policy, such as the desire to promote a professional atmosphere. So long as the workplace appearance policy is applied to all employees and job applicants consistently and equally, an employer has the right to set conditions of employment, including prohibiting tattoos.
Although tattooed individuals are becoming increasingly prevalent among our population, individuals who want to avoid being subject to “tattoo discrimination” would be wise to keep their tattoos covered during interviews and at work.
This article is presented by the Dallas employment lawyers at Clouse Dunn LLP. To speak with an employment attorney about a workplace discrimination matter, send an email to firstname.lastname@example.org or call (214) 239-2705.
About Keith Clouse / Dallas Employment Lawyer Keith Clouse
Keith Clouse is a Texas employment law specialist with over 25 years of experience representing senior executives, business owners, physicians, and corporations in complex employment litigation, arbitration, and negotiations. Senior executives, physicians and other professionals consistently rely on Mr. Clouse for employment law expertise and advice on employment contracts, covenants not to compete, severance agreements, trade secret disputes, breach of fiduciary duty claims, and claims based on workplace discrimination, retaliation, and harassment. Source CDKLawyers.com
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