In my first article of a couple of weeks ago, I outlined some of the broader issues as they relate to the acceptance of employees wearing tattoos in the workplace and the balance that must be achieved to accommodate changes facing corporate cultures. Here are some ideas that will assist in helping employers implement policies in a way that achieves a balance between the need of the corporation to maintain a uniform appearance consistent with its specific industry and, at the same time, allowing employees to express and maintain their own sense of individualism:
A. In drafting the policies, it is important to stay focused on the business issues at hand. Corporate policies that prohibit tattoos should not reflect value judgments about tattoos or the people who wear them. In fact, many employers would likely be surprised to find out how many current employees have tattoos and simply cover them up at work. So negative assumptions about what tattoos say about the people who wear them are often very misplaced. The challenge for employers is to work around these assumptions and to focus on the experience and skills of the employee as if they had no tattoos in the first instance.
B. Issues raised by tattoos can get more complicated when it comes to gender and religion. And employers should be aware of these issues before writing and enforcing policies that prohibit visible tattoos at work. For example, historically, it is likely that more men wore and now wear visible tattoos than a woman. More and more women are getting tattoos at present some of which are visible. As a practical matter, an interviewer who sees a tattoo on a man's arm may not have any reaction to the same.
On the other hand, that same interviewer may have a completely different reaction if the tattoo is visible, for example, on a woman's ankle. In this situation, an employer can be exposed to liability for sex discrimination if the presence of the tattoo was an issue in making the hiring decision.
C. Religious tattoos can pose even more challenging questions. What if an employee who works directly with customers has a tattoo on his wrist and the company has a specific policy that prohibits visible tattoos in customer service positions? Is it okay to require the employee to wear sleeves that are long enough to cover the tattoo? The short and equivocal answer is: it depends. If the tattoo is part of a sincerely held religious belief or practice, and that practice or belief prohibits the employee from covering up the tattoo, the employer may need to allow an exception under those particular circumstances. The reality is that employers are obligated to reasonably accommodate sincerely held religious beliefs and practices unless doing so poses an undue hardship. In the situation, it is prudent to ask the employee about the tattoo and find out whether there is a specific religious basis for it that prohibits them from covering it up.
Managers should coordinate with human resources before having that sort of conversation because, if it is not handled properly, the manager could say something completely unintentional that exposes the company to religious discrimination. But done properly, the manager may find out that the employee is able to cover up the tattoo. If not, this employee may be permitted an exception under the policy as a reasonable accommodation. And doing so as an accommodation will not result in having to allow all employees an exception under the “no visible tattoo” policy.
D. Given this scenario, the key, then for employers, is to have written policies that employees are required to read and sign and then to enforce such policies consistently and in a way that makes common sense. That way, employees are not able to claim that the policy was applied differently to them. And the policies should be based on a sound judgment that is in the best interests of the company. That simply means that employee and customer interests are also to be taken into consideration before the policy is drafted. Work with your human resources department to develop written dress code/appearance policies that are reasonable, consistent with the business purpose of the company, and can be enforced consistently.
Check with human resources and/or legal counsel before talking with an employee about covering a tattoo unless it is clear that the tattoo has no religious significance and having the employee cover the tattoo is consistent with your policy. And remember, as stated before, making assumptions about the qualifications of people who have tattoos is not only unfounded but may result in discrimination claims against your company.
On the other hand, certain employers have policies that do not allow visible tattoos. Depending on the employer's industry and type of job, this may make intrinsic sense. For example, I represented a large hotel chain that had a policy of not allowing concierge employees to have tattoos of large skulls and crossbones on the back of each hand. But the same hotel chain did not have such a policy as it pertained to other employees, such as kitchen based employees who were, by definition, not visible to the consumer public. From a business perspective, the issue for this client was to draft a policy that drew appropriate lines between jobs in which visible tattoos may or may not be appropriate.
The keystone here is a balance as employees continue to change the culture of the corporate workplace by making their own “imprint.” You need to make your own "imprint" by getting out ahead of these changes in the workplace through practical and sensible guidelines that fit your business. Call us at the Katz Law Group at 508-480-8202.