Wearing One’s Heart on One’s “Sleeve”
posted by Miriam Cherry
Recently I read this quick little “work manners” piece about tattoos in the workplace. I’ve read a few other things that seem to indicate that a number of employers are asking workers to cover up their tattoos – obviously a difficult or impossible task if the tattoos are on the worker’s face or hands. Seems inevitable that some of this will result in dismissals, and then the following litigation.
I suppose this fits into the literature developing about employers and evolving standards of dress and grooming in the workplace. Courts have tended to defer to employers on these standards, (even though some of the rationale of those cases is difficult to justify). Given that, and the at will rule, I have a feeling that many claims may end up being couched as discrimination in order to show a congnizable claim. In other words, someone will try to argue that this is discrimination against skin color – if it’s wrong to discriminate against someone who has a particular color of skin overall, isn’t it also wrong to discriminate against someone who has many different colors of skin, based on his/her tattoo?
However, the argument is not completely analogous, as expressing oneself through body art is a “choice,” not an immutable characteristic or freighted with longstanding prejudice that we need to correct through the legal system.
In fact, the tattoo itself is a determined choice to communicate (something), and in fact those who I’ve talked to who have them are extremely committed to that idea of that expression.
Obviously some of that has to do with the subject matter/content of the tattoo itself. If someone decides to get a tattoo to express love for a partner that reads “I heart Barry,” that may be different from getting a tattoo right before the last election reading “I heart Barry O,” (unless you are Michelle Obama and then, I suppose, those messages are one and the same).
Most of the tattoos I see people sporting around San Francisco are not politically related or express any particular intellectual thought. Instead many – fairies, symbols – are artistic and others – a skull, chain, etc. – do not communicate much of anything at all (other than to look menacing or perhaps convey rebellion).
So I go back and forth on this, trying to balance the interests. I am sympathetic, and understand, an employer wanting patrons to have trust in employees – and I’m not sure that the tattoos help that process (unless it’s a place of business that is deliberately provocative – the hip bar, artsy hair salon, etc.) But perhaps I’m behind the times. Tattoos – having them or not having them, covering them or not covering them – is a youth/age thing, and I’m now on the wrong side of the divide. Culture/religion/class is lurking there too, as is a potential gap between personal expression and professionalism.
November 19, 2008 at 3:28 pm
Posted in: Employment Law
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Responses (4)
John Armstrong - November 19, 2008 at 3:53 pm
Have you read David Foster Wallace’s essay Tense Present? It touches on the same sorts of ideas, but from the perspective of (written) language.
JP - November 19, 2008 at 4:14 pm
These cases arise fairly commonly as religious discrimination cases. (It seems many Church of Body Modification members became converts just after they realized their tattoo might cost them their job.) The legal questions are generally whether the plaintiff/employee articulates a sincerely held belief (courts defer to the employee), and whether the employer made a reasonable accommodation (which has several subfactors, mostly deferential to the employer).
I’m curious about whether you have any cases in mind that have difficult to justify rationales?
The definition of “color” under Title VII is pretty well established, and tattoos would simply not be covered. Also (under existing law) whether or not a characteristic is immutable is pretty irrelevant to determining whether discrimination is lawful or not. Discrimination against someone who is ugly, or tall, or blonde is generally legal (so long as gender, race, disability, etc. are not motivating factors).
Finally, does your suggestion that body art is not “freighted with longstanding prejudice that we need to correct through the legal system” mean you don’t think there is longstanding prejudice, or that you don’t think it needs legal correction?
Miriam Cherry - November 19, 2008 at 8:31 pm
Hi, JP,
For the most part, I think you fairly state the state of existing claims/law here. Except, I would point out that (while not explicit) this idea of immutable characteristic is inherent in many of the categories that we have decided are protected. Items that are “choices” get labeled differently in many instances than factors you are born with. The rubber hits the road, I think, in some areas like obesity – disability or choice?
When I say that the grooming/dress cases have some difficult rationale, it’s that the sub rosa interest is often gender conformity – you must wear makeup, wear certain clothes that make you look feminine, etc. (i.e. Jesperson v. Harrah’s) or a policy that seems to disadvantage a group (Paulette Caldwell’s “hair piece” on how policies against dreadlocks/braids are a race issue). So that’s what I was thinking of there.
Re: body art and prejudice. I admitted in the post that I struggled with this. If someone is fired for not complying with a dress or grooming policy because of tattoos, it may be “discrimination” but certainly a discrimination less invidious than that of race, which was what I was trying to convey in that part that you are quoting. There is, though, this element of “freedom of expression.” And, I think we can agree, this is not a value that is currently present in US employment law. There may be both good and bad parts to that statement, but I think that’s where I was feeling the tension – between the idea of the individual’s concept of identity and the doctrine which does not go in that direction whatever.
Maryland Conservatarian - November 20, 2008 at 12:00 pm
Best leave it in the hands of the people who have the most to lose by getting it wrong – the employers. Otherwise, invariably, we will come across the situation where one person’s freedom of expression comes up against that newfound freedom against being offended…and someone with a tattoo displaying Pro-Life artwork, Ronald Reagan’s image or – committing today’s most serious secular mortal sin – an anti-Obama message will once again be an example of the limits to our modern-day celebration of diversity
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