A Capehart Scatchard Blog

Tattoos at Work: What’s an Employer to Do?

By on August 29, 2018 in Other with 0 Comments

For many rock and roll fans, the Rolling Stones are considered the greatest band in music history.  I was recently listening to the Stone’s iconic album, “Tattoo You”, and it made me think about a legal question that I often get from employers.  At this point, you might be wondering how can that be, but along with being a classic album, “Tattoo You” also has one of the best album covers (remember albums covers?) of all time.  It has a face that is covered in tattoos.  So, I started to contemplate a question that I get from many clients: can I not hire persons with tattoos or alternatively can I require that, while on the job, the tattoo be covered so as not to offend any of my customers?

Like many questions in the law, the answer to this issue is: it depends.   On the one hand, employers have every right to create dress codes and grooming policies to set an appearance or brand standard for their employees.  Part of those standards can legally include a requirement that tattoos be covered up during the work day. The employer could also in most cases restrict visibility based upon the kind of messages or images displayed in a tattoo.  However, the key to implementing a legally sustainable policy is it must be applied consistently and even handedly.  By that I mean different standards cannot be applied because of an employee’s race, ethnicity, gender, or other prohibited classification under equal employment opportunity laws.  For example, an employer would no doubt face a potential gender discrimination claim if male employees were allowed to exhibit tattoos but female employees had to cover theirs up while working.  The employer would also face discrimination allegations if it refused to hire older male employees with tattoos but continued to hire younger females with tattoos. Accordingly, so long as such a policy is applied across the board consistently to all employees, legally an employer would be within its right to regulate how tattoos are (or are not) displayed while the employee is at work.

An additional legal caveat to the employer’s right to regulate tattoos in the workplace applies in situations where an employee claims that a tattoo cannot be covered up for religious reasons.  Under the law, sometimes an employer must accommodate an employee’s ability to express his/her religious beliefs at work where doing so would not cause an undue hardship to the employer and its business.  Where the tattoo reflects a sincerely held religious belief, there might be a need to accommodate the allowance of the tattoo’s exhibition, but as is the situation with these kinds of issues, whether an accommodation will need to be made must be based on a fact specific analysis of the presented circumstances.

Dress codes and grooming polices, when done right, are a great way for employers to control the image that a company’s workforce projects to its clients. To ensure that your company’s grooming and appearance polices do not run afoul of legal requirements, it is good to have them reviewed (like all employment policies) periodically by legal counsel to ensure that they meet current legal standards.

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Ralph R. Smith, III, Esq.

About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.

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