Could Tattoo Protections Become the Next CROWN Act?
Author: Emily Scace, XpertHR Legal Editor
November 21, 2022
Recently, the New York City Council proposed an ordinance that would prohibit discrimination, including in employment, based on whether an individual has a tattoo. If it succeeds, a person's tattooed status would become a protected characteristic in New York City - like race, sexual orientation and many others.
The proposed ordinance would be the first of its kind: currently, no federal, state or local law in the US specifically prohibits employers from discriminating against individuals with tattoos. Yet until recently, that was also true of the natural and protective hairstyles worn by many Black people. Since 2019, 18 states and dozens of localities have implemented laws - called CROWN (Creating a Respectful and Open World for Natural Hair) Acts - banning discrimination based on hairstyles often associated with a particular race or ethnicity.
Could tattoos be the next CROWN Act, with New York City leading the way to a nationwide wave of similar laws?
Proponents of the proposed New York City ordinance claim that a person's tattooed status is irrelevant to most, if not all, jobs. While this may be true, antidiscrimination laws do not aim to ensure that every reason underlying an employment decision is a good one. Generally, employers are free to hire or not hire a person for any reason - even an irrational one - as long as it is not a specifically prohibited reason like race, religion or sexual orientation. It may be poor management for a company to promote only Yankees fans or hire only Libras, but it is not illegal.
Tattoos also differ from most protected characteristics in an important way. Protected characteristics are generally traits that are immutable or central to a person's identity - qualities an individual did not choose. In contrast, most tattoos are freely chosen.
Considerations Under Current Law
Just because tattoos are not mentioned by name in any US antidiscrimination laws currently, that doesn't mean employers everywhere will always have carte blanche to handle tattoos any way they choose.
A few jurisdictions - such as the District of Columbia and Madison, Wisconsin - do bar discrimination on the basis of "personal appearance" or "physical appearance." These laws do not mention tattoos in particular, but arguably tattoos fall within the scope of their protections.
In addition, tattoos can implicate other protected characteristics. For example, if an employee requested an exemption from an employer's no-visible-tattoos appearance policy for a religious reason, Title VII of the Civil Rights Act would likely require the employer to accommodate the request unless doing so would impose an undue hardship on the business (although the bar for a religious accommodation to be considered an undue hardship is fairly low). And a company that treats tattoos differently for employees of different races, ethnicities or genders - for example, making frequent exceptions to its corporate no-tattoo policy for white men but not for Black or Hispanic men - could find itself accused of a discriminatory practice.
What the New York City Ordinance Would Change
Outside of the scenarios described above, employers are generally free to adopt a policy restricting or prohibiting visible tattoos among employees. The New York City Ordinance would change that. Not only would employers be prohibited from discriminating on the basis of a person's tattoo, but any employer requiring its employees to cover their tattoos at work would need to prove that it had a business reason for doing so that could not be met in another way.
While organizations might try to claim that projecting a clean, professional image goes hand in hand with an absence of visible tattoos, proving that case may be more difficult than it has been in the past. A recent study in the Journal of Organizational Behavior found that tattooed employees were evaluated more positively than their non-tattooed counterparts in certain career fields. According to the same study, even when people held negative stereotypes about tattoos, those stereotypes did not carry over to create similarly negative perceptions of the organization employing the tattooed worker or the products the worker sold.
And as employers continue to compete for talent in this tight labor market, voluntary relaxation of corporate tattoo policies may accelerate, regardless of the fate of New York City's law. Disney, UPS, Virgin Atlantic, and even the US Army are among the large employers that have adopted this strategy recently, according to CNBC. With tattoos growing in popularity, particularly among younger people - 40 percent of Americans between the ages of 18 and 34 have at least one tattoo - relaxed policies regarding visible ink are one way of fostering the kind of culture where employees are encouraged to bring their whole selves to work, ultimately boosting their sense of belonging in the organization.
Still, even if the trend is toward more acceptance of tattoos, there are some caveats employers should keep in mind. Tattoos that are derogatory toward a protected group, along with sexually explicit tattoos, risk alienating colleagues and customers and reflecting poorly upon the company's commitment to diversity, equity, inclusion and belonging.
Thus, any organization considering allowing employees to visibly display their ink at work should think through these issues carefully when crafting a policy to ensure that one employee's self-expression doesn't result in a hostile work environment for another employee.