According to a recent survey,
the United States now holds the bronze medal for the most number of people with
tattoos, with 46% of the American population having at least one tattoo. The U.S. was beaten by Italy, with 48%,
followed by Sweden with 47%. However,
according to the survey, Americans top the charts for people with multiple
tattoos, men and women get tattoos at the same rate, and that tattoos are more
popular among those with higher levels of education.
What
this means for employers, is that there is now an almost 50-50 chance that a
job applicant will have one or more tattoos.
Traditionally, tattoos were viewed negatively during the hiring process
and were not viewed as an asset in workplace advancement. As recently as 2016, a survey of Human
Resource managers cited tattoos as the third most likely physical attribute
that limits career potential, and polling of millennials show that 70% will
hide their tattoos in the workplace so as not to negatively impact their
employment prospects. However, a study
by researchers from the University of Miami and University of Australia shows
that 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. This is borne out in
corporate America, where some of the country’s biggest employers are now
considered “tattoo
friendly”.
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. Likewise,
tattoos that reflect offensive or discriminatory messages can be the basis for
not hiring an applicant.
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.
Purely decorative secular tattoos do not impose a duty of
accommodation, and employees are free to make employment decisions on that
basis or require employees to cover them up at work. However, as indicated by the recent study, it
appears that tattoos in the workplace are rapidly approaching the point of
becoming a non-issue.
