STEPHEN P. POSTALAKIS B L A U G R U N D , H E R B E R T , K E S S L E R , M I L L E R ,

M Y E R S & P O S T A L A K I S , I N C O R P O R A T E D 3 0 0 W E S T W I L S O N B R I D G E R O A D , S U I T E 1 0 0

W O R T H I N G T O N , O H I O 4 3 0 8 5 ( 6 1 4 ) 9 2 3 - 3 1 1 2

S P P @ B H M L A W . C O M

O H I O A S S O C I A T I O N O F C O U N T Y B O A R D S S E R V I N G P E O P L E W I T H

D E V E L O P M E N T A L D I S A B I L I T I E S 2 0 1 2 S P R I N G C O N F E R E N C E

H I L T O N A T E A S T O N M A Y 1 0 , 2 0 1 2

Tattoos in the Workplace

Tattoos in the Workplace

Overview

 Free speech rights – First Amendment  Civil rights under Title VII – religious

tattoos  Undue hardship to the Board?  Best Practices

Regulating Tattoos in the Workplace

 Why require employees to cover tattoos while working?  Professionalism  Uniformity

 What kind of covering is required?  In most cases, tattoos can be covered by a

uniform or sleeve.  In some cases – face, hands, arms (if uniform is

short sleeve), it may be more difficult to cover.

Ohio Law – Dress Codes

 An employer may impose a dress code, including restrictions on tattoos.

 HOWEVER, the dress code may not violate civil rights laws or First Amendment free speech protections.

When is speech protected by First Amendment?

  When it is spoken as a “citizen”   When an employee speaks pursuant to his or her official

duties, this is not speaking as a citizen.  ASK: Is the employee speaking on behalf of the public as a citizen

or is the employee speaking for him/herself as an employee?

  When it addresses a matter of public concern   i.e. speech concerning the functioning of the government

branch for which he/she works, where employee is speaking on behalf of the public.

  Speech by an employee concerning a political question.

Free Speech in the Government Employee Context

  Government entities (such as a County Board) are given greater latitude to limit the speech of employees.

  This is because government employees’ actions can be interpreted by the public as representing official government endorsement of certain beliefs.

  When enforcing a dress code that requires covering of tattoos, a relevant consideration is whether the displayed tattoo could be interpreted by the public as an endorsement of a certain belief.

Tattoos in the First Amendment Context

  When an employee displays a tattoo, is this “speaking as a citizen on a matter of public concern?”   KEY QUESTION: Is the display of the tattoo generic in nature

or does it reflect an in-depth attempt to contribute to public discourse?  A tattoo of “USN” for U.S. Navy is considered “generic” in nature.  A tattoo that is commentary on a matter of public concern could be

entitled to free speech protection.

First Amendment Protection for Religious Speech

  The First Amendment protects religious expression generally.

  This includes not just verbal expression, but also symbols and conduct that constitutes “symbolic speech.”

  A tattoo is considered “speech” but that does not mean it is necessarily speech protected by the First Amendment.

First Amendment Protection for Religious Speech

  Look at CONTEXT and PURPOSE for which the tattoo is displayed:   Is the employee displaying the tattoo because he/she is

required to do so by his/her genuinely espoused religion?   OR   Is the tattoo displayed to show a personally held religious

belief but not because of a mandatory requirement of a religion?  i.e. a tattoo of a cross

Religious Tattoos in the Workplace

  Most likely, religious tattoos in the workplace would be considered “generic” in nature and not protected by the First Amendment

  In most cases, an employer can require an employee to cover a religious tattoo.

Dress codes under Title VII of the Civil Rights Act

  Title VII of the Civil Rights Act prohibits discrimination based on religion.

  The Act requires employers to accommodate the sincere religious beliefs or practices of its employees UNLESS doing so would impose an “undue hardship” on the business.

Dress codes under Title VII of the Civil Rights Act

  When can an employer use the “undue hardship” exception?  An employer is not required to accommodate an

employee’s religious beliefs or practices if doing so would impose a “more than de minimus cost” on the employer.

Undue Hardship under the Americans with Disabilities Act

 Don’t confuse undue hardship under Title VII with undue hardship under the ADA

 With respect to ADA, have to provide a reasonable accommodation unless it would constitute an undue hardship:  ADA regulations define undue hardship as a

“significant difficulty or expense” that the employer would have to bear.

Undue hardship under Title VII

  Although the undue hardship threshold is low for religious accommodation, if the cost on the employer has to do with the employer’s “image,” the EEOC sees this as suspect.

  EEOC view: Permitting employers to refuse to accommodate religious practices for image related reasons may enable employers to indulge the religious prejudices of their customers.

Dress codes under Title VII of the Civil Rights Act

  EEOC view (continued):   While there may be circumstances where allowing an exception to a

dress and grooming policy would pose an undue hardship, relying alone on “image” as a reason to deny a requested religious accommodation is tantamount to relying on customer religious bias (customer preference) and would be a violation of Title VII.

  Which means?   Relying on “image” alone as the basis for denying a religious

exception to the dress policy is not a sufficient basis.   i.e. Abercrombie & Fitch rejected employment of otherwise

qualified Muslim applicant because she was required by religion to wear head scarf.

Dress codes under Title VII of the Civil Rights Act

  When is modifying a dress code considered an “undue hardship” to the employer?   EXAMPLE: police force has a need for uniformity of

appearance; not required to accommodate the wearing of a traditional religious headpiece by Muslim police officer.

  EXAMPLE: employee at Costco with facial piercings as required by her professed religion. Employer offered accommodations : covering the piercings, using an invisible stud. Employee rejected accommodations and was terminated. Court ruled that any further accommodations would have been an undue hardship to the employer.

Religious Tattoos and Employer Dress Codes

  An employer can require employees to cover tattoos in the workplace.

  When it comes to religious tattoos, generally the employer can require employee to cover, unless the tattoo is required by a sincerely held religious belief.

  Even then, if employer has offered a reasonable accommodation and has a compelling reason to require the tattoo be covered (uniformity, professionalism), then employer can require employee to cover religious tattoo.

Religious Tattoos and Employer Dress Codes

 Remember to ask:   Is the tattoo displayed for secular reasons or for religious

reasons?   Is the tattoo displayed as a generic symbol of religious

conviction OR is it actually required by the religious belief?

  Is there a way to accommodate the wearing of the religious tattoo?

  Is the requested accommodation an undue hardship?

Implementing a Tattoo Policy

  The tattoo policy can be enforced with regard to employees where there is a legitimate business reason for requiring the tattoo(s) be covered.   EXAMPLE: An employee works with consumers on a daily basis

or out in the community. The Board wants to portray professionalism and uniformity of employees. The Board requires all employees who work with consumers on a regular basis to cover tattoos.

  EXAMPLE: A Board employee works in a garage performing repairs and maintenance to vehicles. This employee never interfaces with the public or with consumers. A Board may choose not to enforce its tattoo policy with regard to this employee.

Summary – Best Practices

  Where a County Board determines that a certain set or class of employees (within a particular job description) are likely to interface with the public and/or consumers on a regular basis, it may choose to enforce a tattoo policy with regard to this set of employees.

  Make sure the policy is implemented equally among this subset of employees.

  Explain the legitimate business reasons for the policies.

Summary – Best Practices

 Explain that not all Board employees may be required to comply with this policy.

 Exercise caution where the tattoo is commentary on an issue of public concern or a religious tattoo required by a sincerely held religious belief.