Tattoos in the workplace are back in the spotlight with the news that three police officers in Chicago have filed a lawsuit over a new regulation that will require officers to cover up any tattoos they have while at work. Similar laws have also been introduced in the Army and other government departments across the US in recent years while, over here in Britain, the Metropolitan Police announced a ban on tattoos on the face, above the collar line, or on the hands back in 2012. It’s odd to see the banning of tattoos at a time when tattoo culture is entering the mainstream. And it’s not just government jobs. Many offices, shops and restaurants also require employees to keep their tats under wraps while at work.
It’s estimated that one in five members of the British public now sport ink of some description. The statistic comes as no surprise; tattoos have been embraced by society to an unavoidableextent even by those who still perceive them as representative of some kind of counter culture. Just ten years ago, neck tattoos were still the preserve of gang members and hardcore vocalists. Today, Justin Bieber has one. Logic dictates there must be a corresponding increase in tattoos in the workplace.
The mainstream media loves to report on the ubiquity of ink, throwing around that old cliché that lawyers and doctors are today as likely to have tattoos as musicians and bikers. Reading these reports, you’d be forgiven for thinking the country’s investment banks, schools and hospitals were filled with Kat Von Dee lookalikes. But while we certainly see more tats than twenty years ago, how many of us have a GP with tattooed knuckles or a solicitor with skulls on her neck? Not many, I suspect.
As tattoos have increased in popularity, we’ve seen a parallel interest in the rules and laws surrounding their display in work environments. Few would disagree that offensive tattoos should be banned; Nazi or Klan iconography has no place in the workplace, or, indeed, in civilised society. But what about roses? What about butterflies, mermaids and birds? Who could possibly be offended by such seemingly innocuous designs?
Well many, actually. For every example of an employer that allows visible tattoos, you can find several that forbid them. And unfortunately, it’s not always easy to identify a pattern in professions or employers that allow visible ink. Research suggests the rules are applied arbitrarily across all professions. Starbucks lifted its ban on visible tattoos in 2014, though it still doesn’t allow neck or face tattoos. And while the suits over at Bank of America embrace the inked, claiming to ‘value our differences and recognize that diversity and inclusion are good for our business and make our company stronger’, it’s no surprise to learn that most of the City’s investment banks and law firms operate strict dress codes forbidding any body modifications other than ear piercings.
The traditionally left wing liberals in universities hold true to their stereotype when it comes to tattoos. So says Doctor Matt Lodder, the heavily tattooed university academic and history of the arts lecturer at University of Essex. In fact, he believes his tattoos have been beneficial to his career and claims to have received attention and lecturing opportunities because of it. And while Lodder is in the arts, traditionally a liberal and tolerant discipline, he notes that several members of the business faculty at University of Essex also have tattoos. However, rather confusingly, the same University considered introducing a ban on visible tattoos on support and clerical staff, claiming that they’re “unprofessional”. Lodder intervened, pointing out the absurdity of allowing heavily tattooed researchers and professors while claiming similar tattoos were unprofessional on administrative employees. The ban didn’t go ahead but the incident serves to highlight the erratic and inconsistent application of workplace rules when it comes to body modification.
Personal tastes and preference weigh strongly when determining if a visible tattoo will be acceptable in the workplace, particularly in smaller businesses where the owners are the direct employers and call the shots on what’s acceptable. One trainee chef was told by her NVQ assessor that “she wouldn’t employ me even if I had the best skills, because tattoos look dirty and unprofessional.” It’s evident that despite their increase in popularity, there are still attitudes prevailing in some areas of the work force that tattoos are unsavoury and distasteful.
So if employers are applying such arbitrary rules, the question arises – where does the law stand on the issue of visible body modification in the workplace?
Despite tattooing only being legalised in New York in 1997 and in much of the rest of the United States in the early 2000’s, it comes as no surprise that the world’s most litigious country is where the first lawsuits over the banning of workplace tattoos are happening. Last year, a US soldier filed a lawsuit after the implementation of an Army regulation, which banned tattoos below the elbow and knee and visible tattoos on the neck. The soldier, Adam Thorogood, claimed that his full sleeve tattoo wasn’t harmful but the US Army was using the body art as a reason not to allow him to join the special operations unit or be promoted to any other position. The suit never got as far as the courts – it was dismissed when it emerged that he had no legal basis for suing the army given that he wasn’t harmed in anyway by the policy. As it turned out, the regulation didn’t apply to Thorogood or any other soldiers who had their tattoos before the regulation came into force!
The latest suit, filed by the Chicago police officers, all of whom served in the military and have tattoos on their arms, argues that the new policy violates their First Amendment rights of freedom of speech and expression. Under the policy, all tattoos on officer’s hands, face, neck and other areas not covered by clothing must be covered with “matching skin tone adhesive bandage or tattoo cover-up tape”, regardless of whether the tattoo is considered offensive or not. They argue the cover-up tape causes overheating in warm months leading to skin irritation and discomfort. Also, there was no ban in place at the time they got tattooed or when they joined the police force. The US Constitution specifically prohibits retroactive laws. Employers and employees will watch the lawsuit closely across the US. The retroactive nature of the ban, especially on something so difficult and painful to remove from the body, gives the police a fighting chance of success.
But what about here in the UK? Can an employer fire someone for having tattoos? Can they force employees to cover them up? Well, unfortunately, although the courts have yet to rule on tattoos in the workplace, things don’t look promising for those hoping to enforce their right to body art. As the law currently stands, it is perfectly legitimate for employers to tell their employees to dress in a certain way at work. That even extends to different dress codes for men and women, however archaic and sexist such rules sound in today’s culture of political correctness.
The Employment Equality Tribunal (EET) has previously ruled that female members of staff can be required to wear skirts even though the same rule doesn’t apply to men. In the judgment, it claimed that women were not discriminated against because the company had also imposed different but equivalent restrictions on male members of staff, mainly wearing ties! Similarly the EET have also ruled that itisn’t discriminatory to ban men from having long hair despite allowing women the courtesy. With antiquated decisions like this, it stands to reason that a ruling declaring the tattooed a protected class under employment law is some way off.
So, are there any circumstances where being forced to cover up tattoos would be considered discriminatory? There are some, but these circumstances are few and far between and won’t apply to the majority of inked employees. Discrimination on grounds of religious belief, sex or race, for example, is not allowed in any circumstances. Unfortunately the tattooed aren’t considered a class of people in the same way as race, sex or religion. However, if someone of the opposite sex or race is allowed to display their tattoos and you are not, that might give grounds for a discrimination case. If a particular tattoo was a manifestation of an individual’s religious beliefs, an employer would have to demonstrate that its ban was a proportionate response to business concerns. Back in 2005, a US court ruled in favour of a waiter who refused to cover tattoos on his wrists that he claimed represented his devotion to Ra, the Egyptian sun god. Although his employers claimed his tattoos were contrary to the image of the ‘family friendly’ restaurant, they failed to demonstrate exactly why.
Most of us can’t argue our tattoos are as a result of a religious affiliation and therefore we’re unlikely to receive any protection from the law when it comes to discrimination against ink in the workplace. Even if the law were to change, it could be difficult to prove you didn’t get a job because of your tattoos. We can hope the prevalence of tattoos will eventually change the attitudes of those in positions of power but, for now at least, we have to accept we get ink at our peril. If you are worried about your job prospects, it’s wise not to get tattoos that can’t be covered up.
This article originally appeared in Skin Deep October 2015 edition