Tuesday, February 27, 2018

Tattoos and Piercings in the Workplace

Tattoos and piercings have become increasingly widespread, especially among millennials. A Harris poll in 2012 found that 21 percent of adults have at least one tattoo. A Pew Research Center study found the number to be nearly 40 percent among those aged 18 to 29. The increasing prevalence of tattoos likely means that many employers have had to confront the issue of tattoos and piercings in the workplace.

The good news for employers is that there are no federal or Illinois laws that prohibit them from making employees cover up tattoos in the workplace. No laws prevent an employer from firing or refusing to hire an employee because of his or her tattoo or piercing. As we have discussed, it is not illegal to hire or fire employees based on their physical appearance unless that hiring decision is based upon race, gender, disability, or pregnancy.

Additionally, making an employee cover tattoos or piercings probably would not raise any problems for public sector employees. A public sector employer cannot discipline an employee for speaking on matters of public concern unless doing so would substantially interfere with the employee’s performance of his or her job. It is hard to imagine how making an employee cover a tattoo or piercing would be stifling his or her right to speak on a matter of public concern. Even if it somehow did do this, an argument could probably be made that doing this would be necessary for the employee to perform his or her job. In fact, there have been cases finding that an employee’s free speech rights are not violated by having to cover his or her tattoos or piercings.

The bad news is that a policy banning tattoos not implemented correctly could leave an employer vulnerable to a lawsuit. If an employee has a tattoo or piercing for a religious reason, a negative employment decision based on that tattoo or piercing could violate Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of religion. It could also leave public sector employers open to claims of First Amendment violations, as it might interfere with these employees’ rights to freely exercise their religion. Of course, the religious belief must be sincerely held, and the employer’s policy must burden the employee’s ability to practice his or her religious beliefs. Also, even if the tattoos are based on an employee’s religious beliefs, if the employer can show that permitting the tattoos to be visible would impose an undue hardship on it, then it will not be found to have violated Title VII.

The best way to minimize the risk of a lawsuit based on requiring an employee to cover up tattoos or piercings is to have rules on this subject clearly set forth and explained to the workforce. These rules should be carefully designed so that they do not violate federal or state employment laws like Title VII or the Americans with Disabilities Act. Employee violations of these rules should be documented and employees should be made aware of the violations. Feel free to contact me if you would like to discuss the creation of such a policy or the revision of an existing policy.