After having their federal lawsuit dismissed last Fall, a group of Chicago Police Department officers gained a victory before an arbitrator on a new policy requiring officers to cover their visible tattoos with clothing or flesh toned cover-ups when they are representing the Department.
Last summer, then Superintendent of Police Garry McCarthy revised the long standing uniform policy to require that officers cover up their tattoos “while on duty or representing the department, whether in uniform, conservative business attire or casual dress.”
Three officers filed a federal lawsuit claiming that the new policy violated their First Amendment rights. The suit was dismissed by the court. The judge argued that visible tattoos could “undermine the CPD’s ability to maintain the public’s trust and respect, which would negatively impact the CPD’s ability to ensure safety and order.”
Citing a tattoo of the Confederate flag as an example, Judge Kocoras wrote, “Due to the fact that symbols can be so easily misinterpreted, regulation of tattoos by their content would be unworkable and ineffective.”
Luckily for the officers, they also filed a grievance regarding the change in the policy. They succeeded on the grievance. The arbitrator found that “[t]he employer violated the agreement when it unilaterally implemented the revisions . . . effective June 12, 2015, banning the display of visible tattoos.” In her award, Arbitrator Zimmerman (former general counsel to the Illinois Labor Relations Board) ordered “the department to rescind the revisions and restore the prior policy, rescind and make employees whole for any discipline issued pursuant to these revisions and to make employees whole for any discipline issued pursuant to these revisions and to make employees whole for their demonstrable losses resulting from compliance with the revisions.”
This serves as a good reminder for employers of unionized workers to analyze a potential policy change from every aspect. Many workplace rules might be lawful but still violate the applicable collective bargaining agreement. Conversely, a policy change might comply with the applicable union contract but have a discriminatory impact, for instance, on workers. A thorough review of the potential ramifications of policy changes can prevent a good deal of heartburn to the employer later.
