So far, Title VII of the Civil Rights Act does not include “tattooed” as a protected classification. Moreover, there is no such thing as an “Americans with Tattoos Act.” But does this mean employers can never face liability for firing a tattooed employee? Not really.
Discriminatory Enforcement
While there is no special protection for tattooed employees, employers may face liability if non-discriminatory employment policies are enforced in a discriminatory manner. For example, earlier this month in Texas, a former Starbucks shift-manager filed a federal law suit alleging that although Starbucks fired him for having visible tattoos, the company retained female, tattooed employees. If the employee proves those facts at trial, he should have a successful claim for gender discrimination in violation of Title VII. Thus, developing non-discriminatory policies is only half the battle. The other half is non-discriminatory enforcement.
A common pitfall employers fall into is making an exception for a favored employee (e.g. excusing tardiness, granting special leave). As soon as the employer fails to enforce a policy against one employee, the employer is open to attack by other employees who may claim inconsistent enforcement. Of course, if the complaining employee is a different race, gender, or religion (for example) than the favored employee, the employer may face a discrimination claim. Therefore, unless you have a legitimate business reason to treat an employee more favorably (e.g. he or she has more seniority), you should think twice about making exceptions if your goal is to minimize the risk of discrimination claims.
Religious Discrimination
A much less common basis for a claim by a tattooed employee is religious discrimination. These claims are rare because the employee has the burden of proving that he or she sincerely holds a religious belief that requires the visible tattoo and prohibits its being covered (as is commonly requested by employers). One such dispute is the 2005 case of EEOC v. Red Robin Gourmet Burgers, Inc. In that case, a restaurant server claimed he was discharged for having a tattoo of a religious text encircling his wrist. The inscription was in the Coptic (ancient Egyptian) language, and the tattoo was allegedly required as a right of passage into the Kemetic religion. Moreover, the employee claimed his religion considered it a sin to intentionally cover up that tattoo. After a federal judge denied the employers motion for summary judgment (allowing the case to go to trial), the employer paid the employee $150,000 to settle the case. While the case demonstrates the possibility of such claims, as you can see, such claims are extremely rare.
Conclusion
In short, visible tattoos are not legally protected in the workplace. However, to minimize the risk of claims, employers who want to keep them out of sight should have a policy in the employee handbook and uniformly apply it to everyone (except maybe Kemetics).
Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
