In Pursuit of Profession: Ink in the office

More and more workers these days have tattoos and body piercings, but that doesn’t mean they are more acceptable in the office. We talk with an employment lawyer to feel our way around this sensitive issue.

While it’s been a slow transformation, the modern workplace has become a lot more accommodating. We not only have Casual Fridays, but many offices have a fairly relaxed dress code every day of the week. Flexibility has also come to the hours we work (think “flextime”) and where we work (think “telecommuting”). Perhaps there’s only one major issue that is still fairly touchy in the modern office, well except for the times when the guy down the hall microwaves his leftover salmon dinner in the lunchroom and makes the place smell like a fisherman’s wharf. The issue? Tattoos and body piercings in the office.

The numbers

A recent Pew Research Center study stated that that, “nearly 40 percent of people between the ages of 18 and 29 have at least one tattoo, and body piercings are also a growing means of self-expression among people in this age group.” In a recent survey completed by the Houston Chronicle of 2,700 people, 12 percent reported having a visible tattoo that can be seen by managers and coworkers during the workday, while 3 percent reported having a visible body piercing other than an earring.

While tattoos and piercings are becoming more popular, that doesn’t necessarily mean they are more acceptable – especially in the office. In that same Houston Chronicle survey, “76 percent of respondents feel tattoos and piercings hurt an applicant’s chances of being hired during a job interview. And more than one-third believe employees with tattoos and piercings reflect poorly on their employers. Furthermore, 42 percent feel visible tattoos are always inappropriate at work, with 55 percent reporting the same thing about body piercings.”

WWJD?

Like any significant issue in the workplace, there are two sides to this one. An employee that has “ink” or a body piercing most likely feels that it is a form of self-expression, or perhaps it’s even a display of their religious beliefs. An employer that has an employee with a tattoo or body piercing is probably mostly concerned with how customers and other co-workers are viewing that employee, and in turn, the business itself. While displaying tattoos and body piercings is covered under employment law, it can be a murky issue, especially when the tattoo or piercing in question is considered a religious symbol. “Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees (including private sector, state, and local government employers), as well as employment agencies, unions, and federal government agencies, from discriminating in employment based on race, color, religion, sex, or national origin,” said Attorney Brandy Austin, who has a firm based in Arlington. “With respect to religion, Title VII prohibits among other things disparate treatment based on religion in recruitment, hiring, promotion, benefits, training, job duties, termination, or any other aspect of employment. In most instances, body art or modification is only decorative in nature. However in some instances, it may be associated with projected categories such as race, ethnicity or religion.” If an applicant or employee does claim religious significance when it comes to their tattoos or body piercings, an employer can obtain additional information needed to determine whether their religious practices are sincere. “If an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested, it may ask an applicant or employee for information reasonably needed to evaluate the request,” said Austin.

Fight the power?

So, how much authority does an employer have over an employee’s tattoos and/or body piercings? “According to federal law, employers are allowed to have grooming and appearance rules for employees. And the rules can be different for men and women workers so long as the rules don't discriminate on the basis of gender, race, or religion and have something to do with the job. For example, an employer may have a rule against long hair or beards for male employees, or one requiring women workers to wear dresses or skirts,” said Austin. “A no-tattoo or body-piercing policy may be enforceable under the above guidelines. Most employers have a middle ground: allow such items if they do not interfere with the safe operation of equipment or can be concealed with clothing.”

In terms of hiring people with tattoos and/or body piercings, the cards are still held firmly in the hands of the employer. “Provided there are no prejudices involved, an employer has the right to refuse to extend a hiring opportunity to someone with tattoos or piercings. This is because an employer has the right to refuse to hire anyone it deems unsuitable or inappropriate for the position. The employer must only abide by the laws that protect the classes of individuals noted in federal and state law. An employer also has the right to establish lawful dress codes and to maintain those policies by asking employees to cover their tattoos or to remove piercings. This puts the employer in control of the work environment and leaves it up to hiring managers to decide whether a particular candidate’s body art is acceptable and in compliance with company policy and image,” said Austin.

However, with more and more people, especially in the younger generation, getting tattoos and body piercings, it makes sense that employers show some flexibility. “With the increasing prevalence of tattoos and piercings in the workforce, hiring managers often must weigh the benefits of bringing a job applicant into the company against the dictates of company culture and image,” said Austin. “Employers are allowed to have one set of rules for employees who deal with the public and another set of rules for employees who have no regular contact with the public. For example, a department store could have one set of guidelines for cashiers and customer service employees, a set for administrative office staff, and another set for warehouse staff. However, the rules should be uniformly enforced as to all employees within each particular group.”

This story was originally published April 14, 2016 at 4:58 PM with the headline "In Pursuit of Profession: Ink in the office."