LEGAL MATTERS: Can Your Tattoo Get You Fired?
Wednesday, June 05, 2013
Bad news for body art lovers; your boss can probably fire you because of it. And if she can fire you because of it, she can also make you remove it, or cover it up, at work. If that’s her decision, your only hope of keeping it uncovered lies in anti-discrimination laws. Let me explain why.
Employers Can Ban Body Art
Rhode Island and Massachusetts are ‘employment at will’ states. That means your boss can pretty much fire you at any time for any reason...or even for no reason at all. The boss can also refuse to hire you, demote you, and transfer you for any reason at all. The only limits on the boss’s power come from anti-discrimination and whistle blower protection laws; neither of which mentions tattoos or piercings. That means your boss can ban all piercings and visible tattoos at work unless the ban discriminates against you based on your race, color, ethnicity, sex, sexual orientation or religion. (For a full list of other protected groups in Rhode Island go here; for Massachusetts, go here.)
Religious Body Art
If your body art is visible because of your religious beliefs or practices, you start getting into a gray zone. The law prohibits your boss from flat out prohibiting you from letting religious art show at work. But before you just make up your own religion–Festivus anyone?–you should know you will have to prove you “sincerely hold” the purported religious beliefs. Your beliefs do not have to be traditional, widespread or even rational–just “sincerely held.”
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTIf your sincerely held religious beliefs conflict with a body art ban, the burden shifts to your boss to make reasonable accommodations for your art if she can do so without an undue burden. It is often hard to say what is ‘reasonable’ and what constitutes an ‘undue burden’ because every situation is different. For example, it is not unreasonable to tell an employee who deals with the public to cover up his “Catholics Will Burn In Hell” tattoo. But it is probably unreasonable to prohibit a person in the same job from displaying a Hindu talika (colored circle) on their forehead. Similarly, it would not be an undue burden on an employer to require them to give a person a long sleeve uniform shirt to cover a religious tattoo.
Disparate Impact
This next one is a long shot. If your company policy bans body art, and you can establish the policy has a disproportionate impact on a class of people protected by an anti-discrimination law, then you can challenge the policy based on the anti-discrimination law. Unless the company can then prove there is a legitimate business purpose for the policy, and there is no way to reasonably achieve that business goal without the ban, then the ban goes. You will need hard data to make your case; it is not good enough to just say something like ‘lots Irish people have tattoos so banning them would have a disparate impact on the Irish.’
What To Do If You Are Fired
If you do get fired because of your body art, you may be able to collect unemployment. When you get fired, you are entitled to unemployment unless your boss can show she fired you for just cause. Just cause can be insubordination–so if your boss asks you to cover your tattoo, do not start yelling and screaming at him. Just cause can also be refusal to abide by a legitimate company policy–so if your boss asks you to cover up your ‘F*%# You” tattoo before you wait on customers, you should. Beyond that, you can contact an attorney who specializes in employee rights for advice. Check out the National Employment Lawyers Association for help finding one.
John Longo is a consumer rights attorney practicing law in Rhode Island and Massachusetts. He represents consumers who have disputes with businesses, employees cheated out of their wages or overtime, car buyers stuck with Lemons, and people in need of bankruptcy protection. He is a member of the National Association of Consumer Advocates, the National Association of Consumer Bankruptcy Attorneys, and the Rhode Island Association for Justice.
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