Boss Says No Tatoos or Piercings, Is Legal?

[AlphaButch]

Tattoos and piercings are not a protected class by the ADA. However, they may be covered by the EEOC if they are for religious beliefs.

As per, EEOC Directives Transmittal 915.003 and 29 C.F.R. Part 1605.

Religious tattoos and piercings are protected and an employer must accomodate them IF they do not cause more than a de minimis cost, undue hardship or burden on their operations.

In the matter of dress and grooming codes, U.S. courts have already concluded that causing conflict with the public image the employer wishes to convey to customers falls under the undue hardship. As long as there is no intersection of discrimination regarding any of the protected classes.

Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004).

However, as per later rulings - this hardship cannot be hypothetical and must be proven. i.e. customer complaints, loss of revenue, etc.

EEOC v. Red Robin Gourmet Burgers, Inc., 2005 WL 2090677 (W.D. Wash. Aug. 29, 2005), Brown v. F.L. Roberts, 419 F. Supp. 2d 7, 17 (D. Mass. 2006), EEOC v. Chriskoll, Inc., d/b/a Brookhaven Burger King, Civil Action No. 06-cv-1197 (E.D. Pa. consent decree filed December 3, 2007)

Most employers know these standards and as a common practice will make a long sleeve shirt available to you. If you choose not to use it, then you can be terminated without them worrying about discrimination as they have provided reasonable accomodation.

In the case of the article involving the nose ring article mentioned, the case was settled out of court. Which in no way establishes any legal ruling.

Disclaimer - I am not offering legal advise, only citing established case law. The EEOC themselves prefer that everything be ruled on a case by case basis.

 

[bstone]

It might be protected for government programs, including public schools, but not for private employment.

As they say on Wikipedia, citation needed. I am pretty sure that no employer may discriminate against someone based upon a sincerely help religious belief.

 

[JPINFV]

Read the post above yours...

Besides, prove that I didn't hire someone because of tattoos. When there's an abundance of applicants, the employer can point to any number of other traits on why they hired or didn't hire someone.

 

[bstone]

However, as per later rulings - this hardship cannot be hypothetical and must be proven. i.e. customer complaints, loss of revenue, etc.

That is really interesting. The employer doesn't have a cause to terminate employment because of what MIGHT happen but only if an actual complaint or business problem has actually occurred. Very interesting. I didn't know or realize that.

So yes, tattoos and piercings are protected as long as they cause only minimal disruption and are for religious reasons.

 

[bstone]

Besides, prove that I didn't hire someone because of tattoos. When there's an abundance of applicants, the employer can point to any number of other traits on why they hired or didn't hire someone.

So are you conceding the point that private employers may not arbitrarily fire an employee for becoming tattooed or pierced as per sincerely held religious beliefs and as long as there is minimal disruption and no complaints?

 

[JPINFV]

I'm also going to out on a limb and bet that it's the applicant's duty to show that the tattoo is religious. Some sort of random Chinese character, tear drop, or elbow spiderweb? Not so much.

 

[JPINFV]

So are you conceding the point that private employers may not arbitrarily fire an employee for becoming tattooed or pierced as per sincerely held religious beliefs and as long as there is minimal disruption and no complaints?

I'm gong to emphasis minimal disruption and no complaints. 1 complaint? Termination.

I'm also going to point out that it's often a moot point because there are plenty of other reasons that can be articulated. There's no such thing as "all other things being equal, besides..." in real life.

So technically? Yes. Realistically? No.

 

[bstone]

We're not talking about other reasons. We're talking about tattoos and piercings for religious purposes in the private work place. Do you concede the point? Earlier you said that an employer can do what they want. Have you changed your mind?

 

[JPINFV]

...and again, I'm saying that even if the one reason that I didn't hire someone was specifically tattoos, I challenge you to prove it. So, yes, since it's going to be near impossible for you to prove, in the current job market (which for EMS has been over-saturated for a long time), the employer can easily choose to not hire someone because of tattoos with impunity.

 

[bstone]

Sigh. Avoiding the question again. I know when to stop beating a dead horse.

 

[JPINFV]

No, you fail to understand how the real world works.

 

[Lady_EMT]

First off, I want to say that the following post is coming from someone who has multiple tattoos, has had piercings, and worked in a tattoo shop.

Companies can hire whoever they want. Many times, if you do have a tattoo that is visible, as long as it's nothing profane or ridiculous, they will look past it. But it does look unprofessional when you go running around with green hair, a lip ring, and naked pin up girls up and down both arms.

I've been wanting to get a 9/11 tribute tattoo on my upper lower arm, but I won't, only because I take into account that many people won't hire someone with apparent tattoos. Do I agree with it? It's situation dependent. Policies are policies. Don't like it? Don't apply.




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[AlphaButch]

JP, yes - the employer can require that the employee show proof that the religion is sincerely held. The employer must also be made aware that the tattoo or piercing is due to religious beliefs and given the opportunity to allow reasonable accomodation (reasonable for them, not necessarily for the employee, read on).

Also, if you're in an "at will" state, it would also fall on the employee to show that the reason for the termination was discriminatory. If there was a reason at all. "Hey guys, why'd you fire Joe Tattoo?""Felt crowded in here".

I like tattoos and have a couple (one is religious), as do many of my coworkers. However, they are not visible while we're in uniform. I'm now an employer and I can tell you that if you have visible tattoos, I'll just provide you something to cover it. If it can't be covered, I have the option of not hiring because you don't fit the "image" of my company (which leaves me more open to litigation, but it's still an option). Of course, I may have a myriad of other reasons to choose someone else (experience, attitude, knowledge). You will then have to prove;

a. that the tattoo is religious
b. that I knew it was religious (because I'm not allowed to ask during the interview)
and c. that it was the reason not to be hired/fired - which, a trained HR person would know that A+B had better not = C.

 

[JPINFV]

c. that it was the reason not to be hired/fired - which, a trained HR person would know that A+B had better not = C.

"Applicant John Doe failed the interview."

 

[Handsome Rob]

I love this site. Tattoos are the devil!

sent from my mobile command center. or phone. whatever.

 

[Bullets]

I love this site. Tattoos are the devil!

sent from my mobile command center. or phone. whatever.

i just love how worked up the pro-tattoo crowd gets when we have these discussions

In the areas i work, we have large urban populations, and we have large gang problems of all races and groups. Blod, Crips, MS13, Warlocks, Latin Kings and some local posers. Each and every one of them hate everyone else. There are 2 places that are neutral territory. The amusement park, and tatoo shops. Its the only thing they have in common.

So people around here are cautious when they see people with "ink" Even if you arent in a gang, the assumption is that you are. People see your tatoos first and form an image of what kind of person you are. Is it fair? No, but perception is reality. Show me your tatoos, and ill tell you what gang your in. so naturally employers are cautious about hiring people with visible tatoos because of the public perception

 

[dstevens58]

Multiculturalism isn't a blank check. If someone from one of those African tribes that wears a lip plate would be protected from appearance standards.

Think that would get in the way of effective CPR? Or maybe scare them back into sinus rhythm? :rofl:

Read the post above yours...

Besides, prove that I didn't hire someone because of tattoos. When there's an abundance of applicants, the employer can point to any number of other traits on why they hired or didn't hire someone.

+2 There are many ways to get around hiring someone. A previous employer is not allowed to negatively impact/harm a prospective employee from getting a new job, but there are certain phrases to questions/responses that lets the new (prospective) employer know that a candidate would not be a good fit.

i just love how worked up the pro-tattoo crowd gets when we have these discussions

..... because of the public perception

Public perception shall change, but my sagging/aging skin will never hold a tattoo, despite my kids saying I should get one.

 

[usafmedic45]

Think that would get in the way of effective CPR?

Who in the hell still gives mouth to mouth?

 

[BandageBrigade]

There are many ways to get around hiring someone. A previous employer is not allowed to negatively impact/harm a prospective employee from getting a new job, but there are certain phrases to questions/responses that lets the new (prospective) employer know that a candidate would not be a good fit.

Except that if you request it, a former employer can give nothing more than your dates of employment, and can say nothing good or bad, about performance. They can however, say if you are eligible for rehire.

 

[mcdonl]

It's all about decisions...

If you decided to get a cool flag with infinite justice, and 09/11/01 on it (Yeah, I moved fast and did it before the DOD realized "infinite" would upset the muslim community) on my bicep then I can live with, and explain that decision. Also... no one would know as it is covered with a T-Shirt...

If you make the decision to have thug life on your knuckles, or a gun on your neck people will always question your decision making abilities. And, well.. you ability to make good decisions is sort of important in EMS.