Tattoo U: What Can Employers Do About Offensive Body Art?

by Fisher Phillips
Contact

Fisher Phillips

The Philadelphia Police Department is now enforcing its first-ever tattoo policy forbidding on-duty officers from having “offensive, extremist, indecent, racist, or sexist” tattoos. The policy, titled Directive 6.7, forbids head, face, neck, and scalp tattoos, effective March 1, 2017.

Officers who already have tattoos on the aforementioned areas must cover them with cosmetics or clothing. While tattooed eyebrows will not be banned, the policy also forbids “extreme” body art such as “tongue-splitting or bifurcation,” unnaturally colored contact lenses, branding, and “abnormal filing of teeth.” The new policy follows a controversy regarding a police officer who was harshly criticized for displaying tattoos that resemble Nazi symbols. If an officer violates the policy, they will be sent to the Records and Identification Unit to have the images photographed, and the matter will be passed on to a departmental Tattoo/Body Art Review Board.

Despite the fact that the number of inked Americans has grown over the years, such policies regarding tattoos are not uncommon and are often covered by dress and grooming policies or appearance standards. In most states, provided there is consistent enforcement and reasonable accommodations provided where necessary because of on an employee’s religion, employers have the right to refuse to extend a hiring opportunity to someone with tattoos and require their employees to cover visible tattoos while at work.

While it may make sense for some employers to have policies prohibiting visible tattoos, you should be aware of a number of issues should you choose to adopt such a policy at your workplace. Here are some best practices you should consider.

Implement Reasonable Written Dress And Grooming Policies

Work with your human resources department or consult an attorney to develop written dress code and appearance policies that are based on sound judgment, in the best interest of the business, and can be enforced consistently. State laws tend to support these policies in general and give employers deference to retain some flexibility when creating rules consistent with your image. Be certain all employees read and sign these policies so none can claim lack of knowledge.

Ensure Your Disciplinary Policies Apply 

Employees must know in advance that there are consequences for violating your dress and grooming policies. The key is to have in place disciplinary policies, up to and including termination, for violating the company’s dress and grooming policies and to issue discipline appropriately.

Remember, however, that discipline should be issued on a case-by-case basis. For example, if an employee requests an accommodation to wear a tattoo for religious purposes (such as Kemetism), it would be unwise to immediately terminate that employee for violating the company policy. Instead, you may need to first engage in what is commonly called an “interactive process” to determine if a reasonable accommodation is appropriate for the individual’s religious beliefs.

Apply Company Rules Evenhandedly

Although discipline should be issued on a case-by-case basis, always apply company rules, policies, and penalties evenhandedly and without any appearance of unlawful discrimination. For example, if you allow a former U.S. naval seaman to wear a non-offensive tattoo, you cannot discipline a woman in the same or similar position for wearing a tattoo that is also non-offensive.

Additionally, if you have been lax in enforcing your rules and policies in the past but decide to apply them rigorously going forward, inform your employees beforehand of your intent to enforce the rules as written, and then follow through with the plan. That way, employees are not able to claim the policy was applied differently to them.

Remember Your Non-Harassment Policies

Problems with tattoos can also arise from the subject matter depicted, as tattoos can express political messages, make sexual suggestions, depict violence, or reflect affiliation with a particular offensive group. Past lawsuits have included allegations that a coworker’s offensive, extremist, indecent, racist, or sexist tattoos created a hostile work environment. Therefore, you might find your company is running afoul of your own non-harassment policies if you do not require employees to cover certain tattoos.

Even if you do not prohibit all tattoos, you should require coverage of tattoos that could create a hostile work environment and discipline workers for violating this rule. For instance, it may not be necessary to terminate an employee if she gets a flower tattoo on her arm, as she could cover it with a long-sleeve shirt. However, it may be acceptable to terminate her if she gets a tattoo of the Parteiadler, the national emblem depicting an open-winged eagle adopted by the Nazis in 1935, on the same arm.

Conclusion

Hopefully these simple practices will go a long way toward avoiding workplace legal problems in today’s litigious environment. Due to the rising number of legal claims filed across the country, employers have an increased responsibility to take employee complaints seriously and provide a work environment that welcomes employees from different backgrounds.

A version of this article originally appeared in the March 2, 2017 edition of the Philadelphia Business Journal.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!