HCBA Lawyer Magazine Vol. 29, No. 2 | Page 42

anti-tattoo poliCies May trigger title Vii liaBility
labor & employment law Section
Chairs: Cynthia Sass – Law Offices of Cynthia Sass, P.A. & Jason Pill – Phelps & Dunbar, LLC
T
raditionally, tattoo
owners were perceived
as unscrupulous
characters. Right or
wrong, tattoos have, at times, been
stereotypically associated with
criminals and gang members.
But in the last decade, tattoos
have become mainstream,
particularly among members
of Generations “Y” and “Z.”
Despite the ubiquity of tattoos,
some employers do not consider
them an asset in the workplace,
and understandably, employers
have reservations when hiring
tattooed employees in positions
that involve customer contact.
In these situations, the open
display of a tattoo may not be
conducive to the message the
employer is trying to convey to
the public. So some employers ask
their employees to conceal their
tattoos during work hours in order
to project an approachable and
friendly environment to customers.
While some employees take no
issue with these requests, other
employees may react negatively
and fervently protest their
employer’s efforts to hamper
their self-expression.
From an employment law
standpoint, employers generally
have broad discretion in making
employment decisions based on
tattoos. But in some scenarios,
restrictions on tattoos in the
40
accommodations
workplace could
to sincerely held
violate Title VII
religious beliefs
of the Civil
unless it would
Rights Act
cause undue
of 1964 and
hardship to the
possibly
business. Red
constitute
Robin maintained
religious
that allowing any
discrimination.
exceptions to its
For example,
dress code policy
in EEOC v.
undermine its
Red Robin
“wholesome
Gourmet Burgers,
image.” But the
Inc., 2005 WL
United States
2090677 (W.D.
employers generally
District Court
Wash. Aug. 29,
for the District
2005), the EEOC
have broad discretion
of Washington
alleged that Red
in making employment
rejected Red
Robin, a gourmet
Robin’s argument
burger restaurant
decisions based
on summary
chain, engaged in
on tattoos, but there
judgment, ruling
unlawful religious
that Red Robin
discrimination
are pitfalls.
was required to
when they
support its undue
refused to
hardship claim
accommodate a
with more than hypothetical
religious practice and fired an
hardships based on unproven
employee for not covering up his
assumptions. Red Robin ultimately
tattoos. In that case, employee
settled the lawsuit before trial for
Edward Rangel was hired as a
$150,000 and entered into a
server at a Red Robin restaurant
consent decree with the EEOC.
in Bellevue, Washington. Rangel
The lesson here is that Title VII
asserted that he was an adherent
takes a broad view of religion,
of the Kemetic religion, an ancient
and tattoos that are part of a
Egyptian faith. As part of his
religious practice may need to
religious practice, Rangel received
be accommodated if they do not
religious inscriptions in the form
impose an undue hardship. Purely
of tattoos on his wrists. The
secular tattoos, however, do not
inscriptions symbolized Rangel’s
implicate Title VII, and employers
religious dedication, and his
are free to make
religious practices made it a sin to
decisions on that
deliberately conceal the inscriptions.
basis or require
Red Robin fired Rangel for
employees to
violating the company’s dress code,
cover up tattoos
which prohibited him from having
at work.
visible tattoos. Rangel sought an
exemption from the dress code, but
Red Robin refused to provide it or
Author: Matthew
any alternatives. Title VII requires
S. Perez - Phelps
employers to make reasonable
Dunbar LLP
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NOV - DEC 2018
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HCBA LAWYER