Traditionally, tattoos once identified their
owners as rough characters. This bodily artwork was generally and
stereotypically associated with sailors, bikers, members of the military, or
the result of an alcohol-assisted impulse purchase. However, a glance
around the average coffee shop or suburban mall clearly demonstrates that is no
longer the case. According to the Pew
Research Center, nearly 40% of people born after 1980 have one or more
tattoos, and 25% have a piercing someplace other than an earlobe. According to tattoo industry estimates, 60 % of
all tattoos are being done on women. Surveys
of millennials show that 70% will hide their tattoos in the workplace so as
not to negatively impact their employment prospects.
However, a new study by
researchers from the University of Miami and University of Australia shows that
with changing societal norms, such concerns may have little to no basis. In the study, entitled “Are Tattoos
Associated with Employment and Wage Discrimination? Analyzing the Relationships
between Body art and Labor Market Outcomes”, the researchers surveyed more than
2000 people in all 50 states, and found the
salaries and wages of tattooed employees were “statistically indistinguishable” from
those of their non-tattooed counterparts.
The study suggests that employers recognize that by treating tattoos as
a negative factor in hiring and employment decisions, they run the risk of
missing out on well-qualified job candidates.
From an employment law
standpoint, employers generally retain broad discretion in making employment
decisions based on tattoos, and whether having an “inked” employee is suitable
to their particular company. However, under certain scenarios, restrictions on
tattoos in the workplace could run afoul of Title VII of the Civil Rights Act
of 1964 (“Title VII”) and possibly constitute religious discrimination. A
good example of this is the lawsuit that was brought by the Equal Employment
Opportunity Commission (“EEOC”) against
the Red Robin Gourmet Burgers chain of restaurants. In EEOC v. Red Robin Gourmet Burgers, Inc., the EEOC alleged that the
company religiously discriminated when they fired an employee for not covering
up his tattoos and refusing to accommodate a religious practice. Red
Robin ultimately settled the lawsuit prior to trial for $150,000 and entered
into a consent decree with the EEOC.
The case began when Edward Rangel was hired as a
server at Red Robin’s Bellevue, Washington restaurant. In the lawsuit, Rangel
asserted he was an adherent of the Kemetic religion, an ancient Egyptian
faith. As part of his religious practice, Rangel went through a rite of
passage where he received religious inscriptions in the form of tattoos. The
inscriptions, less than a quarter-inch wide and encircling his wrists, are
liturgical verses from an Egyptian scripture. According to the lawsuit,
the inscriptions symbolized Rangel’s religious dedication and his religious
practices made it a sin to intentionally conceal the religious inscriptions.
Rangel had the tattoos on his wrists when he was
hired, and at that time, Red Robin has a dress code that prohibited employees
from having visible tattoos. The EEOC said that although Rangel worked at
Red Robin for approximately six months without a complaint from customers,
co-workers or his immediate supervisors, a new manager saw the tattoos and
fired Rangel for not concealing them.
Rangel claimed he had repeatedly talked with
management, giving detailed explanations of his faith and the need for an
accommodation. He sought an exemption from the dress code, but Red Robin
refused to provide it or any alternatives. Title VII requires employers
to make reasonable accommodations to sincerely held religious beliefs unless it
would cause undue hardship to the business. Throughout the suit Red Robin
maintained that allowing any exceptions to its dress code policy would
undermine its “wholesome image.” Before the parties settled, Red Robin’s
argument was rejected by the District Court, which held that Red Robin was
required to support its undue hardship claim with more than hypothetical
hardships based on unproven assumptions.
The lesson to be learned from that case is that
Title VII and the EEOC take a very broad view of religion and generally, courts
do not want to be placed in the position of deciding what is or is not a bona
fide religion or religious practice. To that extent, tattoos that are
part of a religious practice may need to be accommodated. Accommodations
are not required if the employer would suffer undue hardship – that is, “more
than de minimis “ or a minimal cost. Whether an accommodation would be an undue
hardship is determined on a case-by-case basis, and considers the potential
burden on an employer’s business in addition to any monetary costs.