As we enter the last quarter of 2015 and head towards 2016, it is undeniable that the majority of society is changing and becoming more accepting. Many taboos associated with tattoos, unconventional hairstyles, and piercings are slowly disappearing. The negative stereotypes still exist to a certain extent among older and more traditional employers but are slowly evolving, even among the typically more conservative generations. With the advent of Millennials entering the workforce (often sporting tattoos, beards and multiple piercings), the next generation of workers and their employers find themselves confronting these stereotypes head-on. Despite such advances, there are many stories of employees having difficulty finding work or being fired for visible (and sometimes not so perceptible) tattoos and piercings that violate corporate dress codes or the personal views of individual employers. In this light, it is beneficial for both employers and employees to understand the legal protections and/or lack of protections in the area of skin and body modification.
Protection Against Discrimination Based on Personal Appearance
Fair warning to all employees, not just millennials–there is currently no law which protects an employee from discrimination based on personal appearance. The overwhelming majority of states are “at will” employment jurisdictions. Consequently, with only a few limited exceptions, an employer can terminate an employee for almost any reason (or even no reason at all). Of course, there are federal, state and local laws protecting employees from termination or other adverse actions based on discriminatory motives. For example, employees cannot be terminated, due to their race, religion, gender, national origin, or sexual orientation.
Despite such protection, there is no law protecting employees from adverse employment actions based on “optional” characteristics, such as facial hair, piercings, or tattoos. Employment policies regarding such traits are instead left entirely to the discretion of employers and their supervisors and managers. While there is evidence that many employers, including major companies, are becoming increasingly more tolerant towards tattoos (and sometimes, even piercings) at work, employers are still within their rights if they decide to adopt policies governing the general appearance of their employees, including excluding such visible modifications.
Why Freedom of Expression is Not Implicated
The First Amendment states that Congress shall make no law “abridging the freedom of speech.” Supreme Court decisions interpreting this text have frequently expanded its protections to cover free expression, such as tattoos. The Constitution, however, only regulates governments, and
therefore does not apply to private employers. Therefore, a law which banned anyone from getting a tattoo would indeed be unconstitutional, but employees who have or purchase tattoos have no constitutional right to force private employers to hire or retain them.
Numerous courts have also determined that even public employees have no constitutional protections against termination for tattoos or other body art. Unlike private employers, federal, state and local governments are subject to the Constitution, and therefore held to a higher standard. While such added protections apply to public employees, several courts have found that a content-neutral and blanket policy banning tattoos in a public workplace is not an unconstitutional abridgment of free speech. In other words, it would be unconstitutional for a public employer to ban certain tattoos (those with a religious content, for instance) while at the same time permitting other tattoos. A policy banning all tattoos at work, however, regardless of art or content, has been held to be constitutional.
When Are Tattoos Protected
Employers cannot discriminate against an employee’s sincerely-held religious beliefs. In that light, if a body modification, such as a visible tattoo or piercing, is an aspect of an employee’s legitimate and sincerely-held religious practice, it would be unlawful for an employer to take adverse action against the employee for displaying that tattoo at work.
There are substantial limitations to this exception and it is important for both employers and employees to understand them. “Personal preferences,” even those with a spiritual dimension, are not considered religious beliefs for legal purposes according to the EEOC. In order to be protected, the body modifications must relate to some organized belief system having to do with “ultimate concerns, such as life, purpose, death, humanity’s place in the universe, or right and wrong” in order to be considered as possibly protected. Otherwise, such personal preferences are “not part of a moral or ethical belief system,” and they fall outside the protection of anti-discrimination law. This exception will be narrowly construed and applied and employees should be wary of a liberal reading of this exception.
In light of the current and very limited protections from discrimination based on personal appearance, employees have little recourse if they are not hired or are fired for their body modifications. The times are changing and, as mentioned herein, cultural attitudes toward body modification have changed drastically in the past several decades. In a world where many in every age group have tattoos and where visible piercings, in areas other than merely a woman’s ear lobe, are becoming less and less unusual, that trend may continue. For now, however, and with an eye towards understanding that such appearance decisions are not protected from judgment or discrimination, employees may want to consider the potential employment ramifications before showing up to work or job interviews with visible tattoos or piercings.
Article by Peyton Smith, a former Partner at Reed & Scardino. For further information about labor and employment law and human resources, please contact Reed & Scardino attorney Erik Moskowitz.