Tattoos in the Workplace

Tattoos in the Workplace STEPHEN P. POSTALAKIS BLAUGRUND, HERBERT, KESSLER, MILLER, MYERS & POSTALAKIS, INCORPORATED 300 WEST WILSON BRIDGE ROAD, SUIT...
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Tattoos in the Workplace STEPHEN P. POSTALAKIS BLAUGRUND, HERBERT, KESSLER, MILLER, MYERS & POSTALAKIS, INCORPORATED 300 WEST WILSON BRIDGE ROAD, SUITE 100 WORTHINGTON, OHIO 43085 (614) 923-3112 [email protected] OHIO ASSOCIATION OF COUNTY BOARDS SERVING PEOPLE WITH DEVELOPMENTAL DISABILITIES 2012 SPRING CONFERENCE HILTON AT EASTON MAY 10, 2012

Tattoos in the Workplace

Overview  Free speech rights – First Amendment  Civil rights under Title VII – religious

tattoos  Undue hardship to the Board?  Best Practices

Regulating Tattoos in the Workplace   Why require employees to cover tattoos

while working?   Professionalism   Uniformity

  What kind of covering is required?   In

most cases, tattoos can be covered by a uniform or sleeve.   In some cases – face, hands, arms (if uniform is short sleeve), it may be more difficult to cover.

Ohio Law – Dress Codes  An employer may impose a dress code,

including restrictions on tattoos.  HOWEVER, the dress code may not violate civil rights laws or First Amendment free speech protections.

When is speech protected by First Amendment?   When it is spoken as a “citizen”   When an employee speaks pursuant to his or her official duties, this is not speaking as a citizen.   ASK:

Is the employee speaking on behalf of the public as a citizen or is the employee speaking for him/herself as an employee?

  When it addresses a matter of public concern   i.e. speech concerning the functioning of the government branch for which he/she works, where employee is speaking on behalf of the public.   Speech by an employee concerning a political question.

Free Speech in the Government Employee Context   Government entities (such as a County Board) are

given greater latitude to limit the speech of employees.   This is because government employees’ actions can be interpreted by the public as representing official government endorsement of certain beliefs.   When enforcing a dress code that requires covering of tattoos, a relevant consideration is whether the displayed tattoo could be interpreted by the public as an endorsement of a certain belief.

Tattoos in the First Amendment Context   When an employee displays a tattoo, is this

“speaking as a citizen on a matter of public concern?”  

KEY QUESTION: Is the display of the tattoo generic in nature or does it reflect an in-depth attempt to contribute to public discourse?   A

tattoo of “USN” for U.S. Navy is considered “generic” in nature.   A tattoo that is commentary on a matter of public concern could be entitled to free speech protection.

First Amendment Protection for Religious Speech   The First Amendment protects religious expression

generally.   This includes not just verbal expression, but also symbols and conduct that constitutes “symbolic speech.”   A tattoo is considered “speech” but that does not mean it is necessarily speech protected by the First Amendment.

First Amendment Protection for Religious Speech   Look at CONTEXT and PURPOSE for which the

tattoo is displayed:   Is

the employee displaying the tattoo because he/she is required to do so by his/her genuinely espoused religion?   OR   Is the tattoo displayed to show a personally held religious belief but not because of a mandatory requirement of a religion?  i.e. a tattoo of a cross

Religious Tattoos in the Workplace   Most likely, religious tattoos in the workplace would

be considered “generic” in nature and not protected by the First Amendment   In most cases, an employer can require an employee to cover a religious tattoo.

Dress codes under Title VII of the Civil Rights Act   Title VII of the Civil Rights Act prohibits

discrimination based on religion.   The Act requires employers to accommodate the sincere religious beliefs or practices of its employees UNLESS doing so would impose an “undue hardship” on the business.

Dress codes under Title VII of the Civil Rights Act   When can an employer use the “undue hardship”

exception?   An employer is not required to accommodate an employee’s religious beliefs or practices if doing so would impose a “more than de minimus cost” on the employer.

Undue Hardship under the Americans with Disabilities Act

  Don’t confuse undue hardship under Title

VII with undue hardship under the ADA   With respect to ADA, have to provide a reasonable accommodation unless it would constitute an undue hardship:   ADA

regulations define undue hardship as a “significant difficulty or expense” that the employer would have to bear.

Undue hardship under Title VII   Although the undue hardship threshold is low for

religious accommodation, if the cost on the employer has to do with the employer’s “image,” the EEOC sees this as suspect.   EEOC view: Permitting employers to refuse to accommodate religious practices for image related reasons may enable employers to indulge the religious prejudices of their customers.

Dress codes under Title VII of the Civil Rights Act   EEOC view (continued):  

While there may be circumstances where allowing an exception to a dress and grooming policy would pose an undue hardship, relying alone on “image” as a reason to deny a requested religious accommodation is tantamount to relying on customer religious bias (customer preference) and would be a violation of Title VII.

  Which means?  

Relying on “image” alone as the basis for denying a religious exception to the dress policy is not a sufficient basis.   i.e. Abercrombie & Fitch rejected employment of otherwise qualified Muslim applicant because she was required by religion to wear head scarf.

Dress codes under Title VII of the Civil Rights Act   When is modifying a dress code considered an

“undue hardship” to the employer? EXAMPLE: police force has a need for uniformity of appearance; not required to accommodate the wearing of a traditional religious headpiece by Muslim police officer.   EXAMPLE: employee at Costco with facial piercings as required by her professed religion. Employer offered accommodations : covering the piercings, using an invisible stud. Employee rejected accommodations and was terminated. Court ruled that any further accommodations would have been an undue hardship to the employer.  

Religious Tattoos and Employer Dress Codes   An employer can require employees to cover tattoos

in the workplace.   When it comes to religious tattoos, generally the employer can require employee to cover, unless the tattoo is required by a sincerely held religious belief.   Even then, if employer has offered a reasonable accommodation and has a compelling reason to require the tattoo be covered (uniformity, professionalism), then employer can require employee to cover religious tattoo.

Religious Tattoos and Employer Dress Codes   Remember to ask:   Is

the tattoo displayed for secular reasons or for religious reasons?   Is the tattoo displayed as a generic symbol of religious conviction OR is it actually required by the religious belief?   Is there a way to accommodate the wearing of the religious tattoo?   Is the requested accommodation an undue hardship?

Implementing a Tattoo Policy   The tattoo policy can be enforced with regard to

employees where there is a legitimate business reason for requiring the tattoo(s) be covered.  

 

EXAMPLE: An employee works with consumers on a daily basis or out in the community. The Board wants to portray professionalism and uniformity of employees. The Board requires all employees who work with consumers on a regular basis to cover tattoos. EXAMPLE: A Board employee works in a garage performing repairs and maintenance to vehicles. This employee never interfaces with the public or with consumers. A Board may choose not to enforce its tattoo policy with regard to this employee.

Summary – Best Practices   Where a County Board determines that a certain set or

class of employees (within a particular job description) are likely to interface with the public and/or consumers on a regular basis, it may choose to enforce a tattoo policy with regard to this set of employees.   Make sure the policy is implemented equally among this subset of employees.   Explain the legitimate business reasons for the policies.

Summary – Best Practices   Explain that not all Board employees may be

required to comply with this policy.   Exercise caution where the tattoo is commentary on an issue of public concern or a religious tattoo required by a sincerely held religious belief.