This post was authored by Stefanie K. Vaudreuil.
Keeping track of monikers for the generations since World War II can be puzzling. You have Baby Boomers, Generation X, and Millennials, but the Millennials are also known as Generation Y. Just who are these Millennials? They were born in the 80s—enough said. The Millennials have been creating some interesting challenges for the Baby Boomers and Gen Xers in the workplace, namely due to the Millennials’ penchant for tattoos and piercings. According to the Pew Research Center, forty percent of Millennials have at least one tattoo and usually more than one. Tattoos are no longer taboo. In fact, the number of tattoo artists increased in the United States from 500 in 1960 to more than 10,000 in 1995.
With forty percent of the current and upcoming workforce having one or more tattoos, it is becoming increasingly difficult for employers to take a wholesale anti-tattoo position. Since the Baby Boomers and Gen Xers are still greatly responsible for hiring and promoting employees, they have no choice but to adapt and change their perceptions of tattoos in the workplace. In a Careerbuilder.com survey, thirty-one percent of the employers responded that they would be less likely to promote an employee with a visible tattoo and thirty-seven percent said they were less likely to promote an employee with piercings. In that particular study, these two categories represent the highest percentage reasons not to promote an employee. How long, though, can these attitudes persist when the workforce is increasingly filled with Millennials? (And as the cases discussed below indicate, the issue is important for Human Resources because in many circumstances, treating employees differently because of their tattoos can be illegal.)
Some, but not all, employers have tattoo policies, which usually do not completely forbid tattoos but require that visible tattoos are covered at work. Is this a practical approach for Millennial employees? Probably not. Millennials are far more likely not only to have visible tattoos but also a greater number of tattoos than previous generations. Unfortunately for the Millennials, the legal and practical realities have not yet met to form a solid agreement. Legally, in California tattoos are generally considered protected speech subject to the First Amendment; yet, it is still for the most part lawful for employers, including public employers, to have reasonable policies regulating tattoos in the workplace. What those policies look like and whether they are Millennial-friendly is an unpredictable variable.
Some employers attempt to create a balance between allowing visible tattoos while also restricting them. Whether this is a reasonable solution remains to be seen. In 2012, a candidate for Liquor Enforcement Officer with the Pennsylvania State Police (PSP) was rejected for the position due to a visible tattoo. The PSP’s policy was that visible tattoos were reviewed by a committee, which determined whether a candidate’s tattoo had to be removed or covered. In this case, Scavone v. Pennsylvania State Police, the PSP informed the candidate one of his tattoos had to be removed to qualify for the position. The candidate refused and was not hired. He then filed a lawsuit in federal court, alleging claims for violation of due process and equal protection. The Third Circuit Court of Appeals, in an unpublished decision, rejected his claims, noting that it is not a fundamental constitutional right to have a tattoo. The Court further held that his “class of one” theory (he was treated differently than other similarly situated individuals without a rational basis) failed because it is not applicable in the public employment context.
What about the employee who asserts his tattoos are associated with his religion? “Don’t tread on me” says the employee who displays visible tattoos depicting readily identifiable Ku Klux Klan symbols. The court in Swartzentruber v. Gunite Corp. dealt with this very issue. When Swartzentruber’s co-workers complained about his tattoo of a hooded figure standing in front of a burning cross, his employer required him to cover it but he neglected to follow those instructions, which led to further complaints. Eventually, he was monitored by supervisors to keep the tattoo covered at work, and this conduct by his employer led him to file a religious discrimination lawsuit.
Without making a specific finding the tattoo was an actual religious symbol entitled to protection, the court determined “Gunite accommodated his tattoo depiction of his religious belief that many would view as a racist and violent symbol by allowing him to work with the tattoo covered” and the law requires nothing more.
Regulating tattoos is now and will continue to be a particular challenge for employers. Some things to keep in mind when creating and enforcing policies are that employers still have a right to generally regulate employee appearance at work and make employment decisions based upon certain aspects of appearance. For example, in Riggs v. City of Fort Worth, the court agreed with the police chief’s decision that an officer’s tattoos created an unprofessional appearance and that this adequately supported his being removed from a bike patrol assignment.
As always, common sense should prevail when making decisions about employment policies and actions concerning tattoos and piercings. Millennials and their tattoos are here to stay—at least until the next generation takes over.