Can an employ­er ban tat­toos in the workplace?

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In Brief

The vis­i­ble tat­toos that indi­vid­u­als adorn their bod­ies with can become the sub­ject of dis­cus­sion in the work­place. There is a diver­si­ty of opin­ion as to whether tat­toos are a pos­i­tive, neg­a­tive or neu­tral pres­ence in the work­place. This arti­cle dis­cuss­es whether an employ­er can pre­vent tat­toos in the workplace.

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Tat­too­ing has a lengthy and inter­est­ing cul­tur­al his­to­ry and has a wide vari­ety of tat­too­ing prac­tices with dif­fer­ent ori­gins, across dif­fer­ent cul­tures and with dif­fer­ent objectives.

The vis­i­ble tat­toos that indi­vid­u­als adorn their bod­ies with can become the sub­ject of dis­cus­sion in the work­place. There is a diver­si­ty of opin­ion as to whether tat­toos are a pos­i­tive, neg­a­tive or neu­tral pres­ence in the work­place. Opin­ion is often informed by the type and loca­tion of the work­place, the cus­tomers who fre­quent the work­place, and the indi­vid­u­als that work there.

An employ­er’s approach will there­fore often depend on what kind of busi­ness they are in and some­times their per­son­al pref­er­ences. More tra­di­tion­al or con­ser­v­a­tive work­places may for exam­ple adopt a dif­fer­ent atti­tude to tat­toos to a work­place with a more cre­ative environment.

Can an employ­er pre­vent tat­toos in the workplace?

In New South Wales under the Anti-Dis­crim­i­na­tion Act (NSW), dis­crim­i­na­tion on the grounds of race is unlaw­ful. If it could be said that the wear­ing of a tat­too is com­mon to a par­tic­u­lar race (for exam­ple it is part of their cul­ture), there may be room for argu­ing that requir­ing a per­son of that race to com­ply with a con­di­tion (such as cov­er­ing up tat­toos) is dis­crim­i­na­to­ry, on the basis that the con­di­tion or require­ment is one which a sub­stan­tial­ly high­er pro­por­tion of peo­ple not of that race, com­ply or are able to com­ply. There is an excep­tion where it is not dis­crim­i­na­tion if the require­ment is found to be reasonable.

If the wear­ing of Tat­toos is an expres­sion of a per­son­’s race, colour, nation­al­i­ty or eth­nic ori­gin then any require­ment which has the effect of nul­li­fy­ing or impair­ing that free­dom of expres­sion, such as a require­ment to keep tat­toos cov­ered up, may con­sti­tute a breach of the Racial Dis­crim­i­na­tion Act 1975 (Cth) unless the require­ment was rea­son­able hav­ing regard to the cir­cum­stances of the case. Each case would need to be looked at on its own mer­its and fur­ther judi­cial guid­ance in this field would be of assis­tance. Nev­er­the­less, it seems that an employ­er would need to be able to demon­strate that there were com­pelling busi­ness rea­sons which sup­port­ed the action tak­en. It is advis­able that before an employ­er sought to take any action restrict­ing an employ­ee’s wear­ing of tat­toos or enforc­ing a pol­i­cy in this regard, that they first under­stand the employ­ee’s rea­son for wear­ing tattoos.

The Fair Work Act 2009 (Cth) pro­tects against dis­crim­i­na­tion based, amongst oth­er things, on reli­gion, polit­i­cal opin­ion, nation­al extrac­tion or social ori­gin. How­ev­er these pro­vi­sions do not apply for exam­ple where: the action tak­en is not unlaw­ful under any antidis­crim­i­na­tion law in force at the place where the action is tak­en, or where the action is tak­en because of the ​“inher­ent require­ments” of the posi­tion. These pro­vi­sions are there­fore clear­ly an adjunct to antidis­crim­i­na­tion pro­vi­sions already in force. Anom­alies may there­fore exist regard­ing access to this juris­dic­tion depend­ing upon indi­vid­ual state based leg­is­la­tion. A lot may turn on whether it was rea­son­able to have as an inher­ent require­ment of the posi­tion, a require­ment that a per­son com­plies with a par­tic­u­lar employ­er pol­i­cy on tattoos.

In Vic­to­ria the Equal Oppor­tu­ni­ty Act 2010 (Vic) pre­vents dis­crim­i­na­tion on the basis of ​“phys­i­cal fea­tures”. If for exam­ple, an employ­er does not employ some­one or ter­mi­nates their employ­ment because of their phys­i­cal fea­tures, then this may con­sti­tute dis­crim­i­na­tion sub­ject to the fol­low­ing rel­e­vant exceptions:

• If the posi­tion is for a dra­mat­ic or an artis­tic per­for­mance, pho­to­graph­ic or mod­el­ling work or any sim­i­lar employment
• In domes­tic employ­ment in the employ­ers home
• Dis­crim­i­na­tion against a per­son on the basis of their phys­i­cal fea­tures may be per­mit­ted if it is rea­son­ably nec­es­sary to pro­tect the health, safe­ty or prop­er­ty of any per­son (includ­ing the per­son dis­crim­i­nat­ed against)

In Vic­to­ria tat­toos may have been con­sid­ered to con­sti­tute a phys­i­cal fea­ture (Jamieson v Benal­la Golf Club Inc (2000) VCAT 1849 (30 Sep­tem­ber 2000). Although such a find­ing was not nec­es­sary for the deci­sion and there­fore prob­a­bly not bind­ing, it is like­ly to be relied upon in future deci­sions in this area. On this basis, indi­vid­u­als in Vic­to­ria may enjoy spe­cif­ic pro­tec­tion from dis­crim­i­na­tion on account of their tattoos.

Inter­na­tion­al approach­es to tat­toos in the workplace

Recent­ly in New Zealand the actions of a com­pa­ny in requir­ing a Maori employ­ee to cov­er her moko (tat­too) were held not to be dis­crim­i­na­to­ry (Haupi­ni v SRCC Hold­ings Ltd [2011] NZHRRT 20). How­ev­er in this case the employ­ee brought a claim on the grounds of race, and the Human Rights Review Tri­bunal held there was no dis­crim­i­na­tion on the basis of race, as fel­low Maori employ­ees were not asked to cov­er their tat­toos with long sleeved shirts and in her case the request was direct­ed to a par­tic­u­lar client func­tion. The Tri­bunal out­lined the fol­low­ing fac­tors which estab­lished that the employ­ee had not been sub­ject to dis­crim­i­na­tion when asked to cov­er the tattoo:

• There was no dis­crim­i­na­to­ry intent
• There was a rea­son­able busi­ness-relat­ed rea­son for the request
• Ask­ing the employ­ee to cov­er the tat­too with a long sleeved shirt was a good option
• The employ­ee did not inform her employ­er she did not want to cov­er the tat­too. If she had the employ­er may have retract­ed the request
• The cov­er­age of the tat­too was for a very lim­it­ed time

The Tri­bunal did note that if the claim had been based on cul­ture it may have been successful.

In Cal­i­for­nia, tat­toos and the process of tat­too­ing has been recog­nised as pro­tect­ed by the first amend­ment right of free speech on account of tat­too­ing con­sti­tut­ing speech. In Ander­son v City of Her­mosa Beach 621 F.3^d 1051(9^th Cir.2010) the Cal­i­forn­ian Fed­er­al Court deter­mined that Her­mosa Beach’s ban on tat­too par­lours was uncon­sti­tu­tion­al on the basis that the restric­tion was not a rea­son­able time, place or man­ner restriction.

How­ev­er, employ­ees in USA who claim dis­crim­i­na­tion based on their tat­toos have only been suc­cess­ful where the tat­too con­tains polit­i­cal speech, reli­gious expres­sion or the treat­ment of the employ­ee involves some oth­er dis­crim­i­na­to­ry ele­ment. For instance, pre­vent­ing female employ­ees from dis­play­ing tat­toos but allow­ing male employ­ees to dis­play them would be discriminatory.

Con­clu­sion

There is lit­tle judi­cial guid­ance on the rela­tion­ship and appli­ca­tion of laws on dis­crim­i­na­tion to the wear­ing of tat­toos in the workplace.

If a tat­too is a fea­ture of some­one’s reli­gion, polit­i­cal opin­ion or eth­nic or social ori­gin then it may be unlaw­ful for an employ­er to take action which may be capa­ble of being char­ac­terised as dis­crim­i­na­to­ry based on the wear­ing of their tattoo.

If the appear­ance of tat­toos is unde­sir­able in a par­tic­u­lar work­place due to the nature of the employ­er’s busi­ness and/​or dress and appear­ance stan­dards, it is open to employ­ers to devel­op or expand exist­ing poli­cies in this area. It may be that in a pol­i­cy, a dis­tinc­tion will be drawn between types of tat­toos which will be regard­ed as accept­able and those which will be regard­ed as unac­cept­able. There may be a ​“cov­er up” pol­i­cy with respect to tat­toos gen­er­al­ly or only cer­tain types of tat­toos or cer­tain loca­tions for tattoos.

In any pol­i­cy it is strong­ly rec­om­mend­ed to address the issue of tat­toos whose ori­gin is based on race, reli­gion, pol­i­tics or eth­nic­i­ty and con­sid­er hav­ing cul­tur­al­ly appro­pri­ate excep­tions. If an employ­er has a com­plete pro­hi­bi­tion on the expos­ing of tat­toos then it will need a cogent and rea­son­able busi­ness case under­pin­ning it.

For assis­tance or advice regard­ing tat­toos in the work­place or poli­cies feel free to con­tact us.

5 Decem­ber 2012