Tattoos are often an important part of a person's self-expression. They can reflect valuable personality traits, or they can simply change the way a person looks. Whatever the case, tattoos are usually permanent. Employees with visible tattoos (or those considering getting one) are therefore faced with an important question: can an employer fire me, refuse to hire me, or force me to cover up my tattoos? In most cases, the answer is "Yes." Employers can adopt a "no tattoos" policy, as long as they apply it consistently across all genders, races, and ages. An employer's right to adopt this kind of policy, however, is not without limits. This article explains the general rule and confronts those limits for California employees.
In most cases, employers in California are permitted to adopt reasonable rules concerning an employee's physical appearance, grooming, and dress. ((Cal. Code of Regs., tit. 2, § 11019.)) Employers must, however, allow an employee to appear or dress consistently with the employee's gender identity or gender expression. ((Gov't Code, § 12949.))
An employer's dress code or physical appearance standards generally cannot discriminate on the basis of certain protected grounds. ((Gov't Code, § 12940.)) If the rules discriminate on protected grounds they are unlawful if they significantly burden the individual in his or her employment. Those protected grounds include:
An employer's policies concerning physical appearance, grooming, and dress must generally be consistently applied to all of these groups. ((Cal. Code of Regs., tit. 2, § 11019.)) There are certain exceptions, however. For example, employers are permitted to apply different standards to different genders, as long as they allow employees to dress consistently with their gender identity or gender expression. ((Gov't Code, § 12949.))
Very rarely will tattoos fall under one of these protected grounds. A policy prohibiting tattoos will not usually result in unlawful discrimination if it is consistently applied.
There may, however, be certain arguments available to employees if an anti-tattoo policy is inconsistently applied. Employers could not, for example, allow members of one racial or ethnic group to have tattoos, but prohibit members of another racial or ethnic group from having tattoos. Under those circumstances, the employer would be engaging in unlawful employment discrimination. Of course, these situations are relatively uncommon.
It might also be unlawful for employers to allow certain kinds of tattoos and not others. If an employer allows a tattoo that depicts a random symbol but not a tattoo expressing a person's heritage, the employer may be engaging in unlawful employment discrimination if all other characteristics of the tattoos are equal. Because these situations are uncommon, however, there are few published court cases to provide employees with legal guidance. The state of the law is therefore unclear concerning the amount of discretion an employer has to distinguish between different kinds of tattoos.
In general, employers may not engage in discrimination on the basis of an employee's religion. ((Gov't Code, § 12940.)) In 2012, the California legislature passed Assembly Bill 1964, called the California Workplace Religious Freedom Act. This act forces employers to provide reasonable accommodations for an employee's religious dress practice or religious grooming practice, as long as it does not create an undue hardship for the employer. ((Gov't Code, § 12940, subd. (l)(1).)) An accommodation creates an undue hardship if it costs the employer significant difficulty or expense.
Although the law appears to be targeted at religious practices like beards or religious attire, the language would also arguably apply to people whose religion requires them to have a tattoo. These religions are relatively rare, but if the religion contains an affirmative requirement that members must have certain tattoos, then employers probably must accommodate those tattoos. In other words, religious tattoos are probably exempt from normal "no tattoo" workplace policies if the employee is required by his religion to have it and it does not create an undue hardship for the employer. Unfortunately, however, because California's Workplace Religious Freedom Act is so new, there are no court cases interpreting its application to tattoos in the workplace. Accordingly, employees with tattoos do not have clear guidance on the matter.
If the employer provides employees with an employee handbook, the employee should first check the employee handbook to determine if the company has a rule on visible tattoos. If there is no rule on visible tattoos, the employee should confirm with their employer that the tattoo is allowed and complies with whatever grooming standards the employer has adopted.
If an employer prohibits tattoos and the employee has a visible tattoo, they can request that they be allowed to cover it up. Employers, however, are under no obligation to accommodate this request if covering the tattoo up would still violate the employer's dress code. If the employer does not grant the employee's request, the employee's options are limited and the employee may be required to seek employment elsewhere.
If the employer does not consistently apply its tattoo policy, the employee may have a right to bring a lawsuit against the employer. The grounds for the lawsuit can vary from case-to-case, but tattoo-related cases are usually brought on the basis of: discrimination, breach of contract, or wrongful termination. The facts in these kinds of cases can vary greatly and it is important to consult an experienced employment attorney.
Employees have a right to express themselves. Unfortunately, however, this right often does not extend to conduct or appearances in the workplace. Accordingly, tattoos are commonly prohibited at work, and this practice is usually perfectly legal. Where employers cross a line, however, is when they inconsistently apply their "no tattoos" policy to people of different genders, races, or ages. Employers can also cross a line if they refuse to accommodate employees with tattoos that are required by a religion.
If you believe that you have been discriminated on a protected ground, it's important contact a qualified attorney in your area to immediately discuss your situation. Give Optimum Employment Lawyers a call at (949) 954-8181. All consultations are complimentary and confidential.