Lunes, Marso 17, 2014

Can an employer ban tattoos in the workplace?

Can an employer ban tattoos in the workplace?

Article by Richard Ottley and Laura Sowden

IN BRIEF

The visible tattoos that individuals adorn their bodies with can become the subject of discussion in the workplace. There is a diversity of opinion as to whether tattoos are a positive, negative or neutral presence in the workplace. This article discusses whether an employer can prevent tattoos in the workplace.
Tattooing has a lengthy and interesting cultural history and has a wide variety of tattooing practices with different origins, across different cultures and with different objectives.
The visible tattoos that individuals adorn their bodies with can become the subject of discussion in the workplace. There is a diversity of opinion as to whether tattoos are a positive, negative or neutral presence in the workplace. Opinion is often informed by the type and location of the workplace, the customers who frequent the workplace, and the individuals that work there.
An employer's approach will therefore often depend on what kind of business they are in and sometimes their personal preferences. More traditional or conservative workplaces may for example adopt a different attitude to tattoos to a workplace with a more creative environment.

CAN AN EMPLOYER PREVENT TATTOOS IN THE WORKPLACE?

In New South Wales under the Anti-Discrimination Act (NSW), discrimination on the grounds of race is unlawful. If it could be said that the wearing of a tattoo is common to a particular race (for example it is part of their culture), there may be room for arguing that requiring a person of that race to comply with a condition (such as covering up tattoos) is discriminatory, on the basis that the condition or requirement is one which a substantially higher proportion of people not of that race, comply or are able to comply. There is an exception where it is not discrimination if the requirement is found to be reasonable.
If the wearing of Tattoos is an expression of a person's race, colour, nationality or ethnic origin then any requirement which has the effect of nullifying or impairing that freedom of expression, such as a requirement to keep tattoos covered up, may constitute a breach of the Racial Discrimination Act 1975 (Cth) unless the requirement was reasonable having regard to the circumstances of the case. Each case would need to be looked at on its own merits and further judicial guidance in this field would be of assistance. Nevertheless, it seems that an employer would need to be able to demonstrate that there were compelling business reasons which supported the action taken. It is advisable that before an employer sought to take any action restricting an employee's wearing of tattoos or enforcing a policy in this regard, that they first understand the employee's reason for wearing tattoos.
The Fair Work Act 2009 (Cth) protects against discrimination based, amongst other things, on religion, political opinion, national extraction or social origin. However these provisions do not apply for example where: the action taken is not unlawful under any antidiscrimination law in force at the place where the action is taken, or where the action is taken because of the "inherent requirements" of the position. These provisions are therefore clearly an adjunct to antidiscrimination provisions already in force. Anomalies may therefore exist regarding access to this jurisdiction depending upon individual state based legislation. A lot may turn on whether it was reasonable to have as an inherent requirement of the position, a requirement that a person complies with a particular employer policy on tattoos.
In Victoria the Equal Opportunity Act 2010 (Vic) prevents discrimination on the basis of "physical features". If for example, an employer does not employ someone or terminates their employment because of their physical features, then this may constitute discrimination subject to the following relevant exceptions:
  • If the position is for a dramatic or an artistic performance, photographic or modelling work or any similar employment
  • In domestic employment in the employers home
  • Discrimination against a person on the basis of their physical features may be permitted if it is reasonably necessary to protect the health, safety or property of any person (including the person discriminated against)
In Victoria tattoos may have been considered to constitute a physical feature (Jamieson v Benalla Golf Club Inc (2000) VCAT 1849 (30 September 2000). Although such a finding was not necessary for the decision and therefore probably not binding, it is likely to be relied upon in future decisions in this area. On this basis, individuals in Victoria may enjoy specific protection from discrimination on account of their tattoos.

INTERNATIONAL APPROACHES TO TATTOOS IN THE WORKPLACE

Recently in New Zealand the actions of a company in requiring a Maori employee to cover her moko (tattoo) were held not to be discriminatory (Haupini v SRCC Holdings Ltd [2011] NZHRRT 20). However in this case the employee brought a claim on the grounds of race, and the Human Rights Review Tribunal held there was no discrimination on the basis of race, as fellow Maori employees were not asked to cover their tattoos with long sleeved shirts and in her case the request was directed to a particular client function. The Tribunal outlined the following factors which established that the employee had not been subject to discrimination when asked to cover the tattoo:
  • There was no discriminatory intent
  • There was a reasonable business-related reason for the request
  • Asking the employee to cover the tattoo with a long sleeved shirt was a good option
  • The employee did not inform her employer she did not want to cover the tattoo. If she had the employer may have retracted the request
  • The coverage of the tattoo was for a very limited time
The Tribunal did note that if the claim had been based on culture it may have been successful.
In California, tattoos and the process of tattooing has been recognised as protected by the first amendment right of free speech on account of tattooing constituting speech. In Anderson v City of Hermosa Beach 621 F.3d 1051(9th Cir.2010) the Californian Federal Court determined that Hermosa Beach's ban on tattoo parlours was unconstitutional on the basis that the restriction was not a reasonable time, place or manner restriction.
However, employees in USA who claim discrimination based on their tattoos have only been successful where the tattoo contains political speech, religious expression or the treatment of the employee involves some other discriminatory element. For instance, preventing female employees from displaying tattoos but allowing male employees to display them would be discriminatory.

CONCLUSION

There is little judicial guidance on the relationship and application of laws on discrimination to the wearing of tattoos in the workplace.
If a tattoo is a feature of someone's religion, political opinion or ethnic or social origin then it may be unlawful for an employer to take action which may be capable of being characterised as discriminatory based on the wearing of their tattoo.
If the appearance of tattoos is undesirable in a particular workplace due to the nature of the employer's business and/or dress and appearance standards, it is open to employers to develop or expand existing policies in this area. It may be that in a policy, a distinction will be drawn between types of tattoos which will be regarded as acceptable and those which will be regarded as unacceptable. There may be a "cover up" policy with respect to tattoos generally or only certain types of tattoos or certain locations for tattoos.
In any policy it is strongly recommended to address the issue of tattoos whose origin is based on race, religion, politics or ethnicity and consider having culturally appropriate exceptions. If an employer has a complete prohibition on the exposing of tattoos then it will need a cogent and reasonable business case underpinning it.

For further information please contact:

Richard Ottley, Partner
Phone: + 61 2 9233 5544
Email: rbo@swaab.com.au
Laura Sowden, Solicitor
Phone: + 61 2 9233 5544
Email: lms@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Authors

http://www.mondaq.com/australia/x/211352/employee+rights+labour+relations/Can+an+employer+ban+tattoos+in+the+workplace

 

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