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The Practical Employer

Tattoos at Work: More Acceptance, Yet Still Some Legal Risk

While employers do have discretion in hiring or firing because of tattoos, they must be careful to ensure that such actions are grounded in a legitimate business reason.

I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.

With tattoos becoming more prevalent, it appears employers are becoming more accepting. The same poll revealed that tattoos are on the rise in professions ranging from teachers to doctors to judges.

Yet, your attitude may differ. You may demand a more traditionally professional look, and may not want someone with a tattoo representing your business or your brand.

There is nothing discriminatory on its face about refusing to hire someone with a tattoo. It may simply be a decision of the type of image that your company wants to project. Of course, it matters that such a policy is applied non-discriminatorily. In other words, a company can’t have two standards to visible body art—one for men and one for women, or one for whites and one for blacks.

Indeed, employers have gotten themselves in some legal trouble for using a tattoo as a proxy to reach an employment decision based on a protected class.

For example, in one case, a restaurant was alleged to have violated Title VII when it refused to hire a practitioner of Kemeticism (a religion with roots in ancient Egypt). The applicant he had tattoos on each wrist signifying the Egyptian sun god Ra. He argued that it would be a sin for him to hide the tattoos because of their religious significance.

In another case, an African-American employee claimed he was denied a promotion, and later fired, by his white supervisor, who bore a Confederate flag tattoo.

In yet another, UPS was accused of sexual harassment based on employees’ mistreatment of the plaintiff with a “lesbian tattoo.”

The first of these cases settled on the eve of their respective trials; the third resulted in a plainiff’s verdict.

So, what does all this mean? It means that while employers do have discretion in hiring or firing because of tattoos, they must be careful to ensure that such actions are (1) not because of a protected class, and (2) grounded in a legitimate business reason. Otherwise, the tattoo in question might be the employer getting tattooed with a big, fat verdict.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.