According to the Pew Research Center, nearly 40% of people born after 1980 have one or more tattoos, and 25% have a piercing someplace other than an earlobe. Traditionally, visible tattoos were not viewed as an asset in workplace advancement. As recently as 2016, a survey of human resource managers cited tattoos as the third most likely physical attribute that limits career potential, and polling of millennials shows that 70% will hide their tattoos in the workplace so as not to negatively impact their employment prospects. However, a new study by researchers from the University of Miami and University of Australia shows that such concerns may have little to no basis
In the study, entitled “Are Tattoos Associated with Employment and Wage Discrimination? Analyzing the Relationships between Body art and Labor Market Outcomes,” the researchers surveyed more than 2000 people in all 50 states, and found the salaries and wages of tattooed employees were “statistically indistinguishable” from those of their non-tattooed counterparts. The study suggests that employers recognize that by treating tattoos as a negative factor in hiring and employment decisions, they run the risk of missing out on well-qualified job candidates. This is borne out in corporate America, where some of the country’s biggest employers are now considered “tattoo friendly.”
From an employment law standpoint, employers generally retain broad discretion in making employment decisions based on tattoos, and whether having an “inked” employee is suitable to their particular company.
However, under certain scenarios, restrictions on tattoos in the workplace could run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”) and possibly constitute religious discrimination. An example of this is the lawsuit that was brought by the Equal Employment Opportunity Commission (“EEOC”) against the Red Robin Gourmet Burgers chain of restaurants. In EEOC v. Red Robin Gourmet Burgers, Inc., the EEOC alleged that the company religiously discriminated when they fired an employee for not covering up his tattoos and refusing to accommodate a religious practice. Red Robin ultimately settled the lawsuit prior to trial for $150,000 and entered into a consent decree with the EEOC.
The case began when Edward Rangel was hired as a server at Red Robin’s Bellevue, Washington restaurant. In the lawsuit, Rangel asserted he was an adherent of the Kemetic religion, an ancient Egyptian faith. As part of his religious practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions, less than a quarter-inch wide and encircling his wrists, are liturgical verses from an Egyptian scripture. According to the lawsuit, the inscriptions symbolized Rangel’s religious dedication and his religious practices made it a sin to intentionally conceal the religious inscriptions.
Rangel had the tattoos on his wrists when he was hired, and at that time, Red Robin has a dress code that prohibited employees from having visible tattoos. The EEOC said that although Rangel worked at Red Robin for approximately six months without a complaint from customers, co-workers or his immediate supervisors, a new manager saw the tattoos and fired Rangel for not concealing them.
Rangel claimed he had repeatedly talked with management, giving detailed explanations of his faith and the need for an accommodation. He sought an exemption from the dress code, but Red Robin refused to provide it or any alternatives. Title VII requires employers to make reasonable accommodations to sincerely held religious beliefs unless it would cause undue hardship to the business. Throughout the suit Red Robin maintained that allowing any exceptions to its dress code policy would undermine its “wholesome image.” Before the parties settled, Red Robin’s argument was rejected by the District Court, which held that Red Robin was required to support its undue hardship claim with more than hypothetical hardships based on unproven assumptions.
The lesson to be learned from that case is that Title VII and the EEOC take a very broad view of religion and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice. To that extent, tattoos that are part of a religious practice may need to be accommodated. Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs.
Purely decorative secular tattoos do not impose a duty of accommodation, and employers are free to make employment decisions on that basis or require employees to cover them up at work. However, as indicated by the recent study, it appears that tattoos in the workplace are rapidly approaching the point of becoming a non-issue.