CORPUS CHRISTI, Texas – With the increasing number of younger, white-collar professionals who choose to adorn and modify their bodies with tattoos and body piercings, employers are often faced with a difficult decision – whether or not to hire these otherwise qualified applicants based on these modifications. While tattoos, body piercings, and other body modifications are becoming more mainstream, they are still not widely accepted into America’s corporate culture.
Two professors in the College of Business at Texas A&M University-Corpus Christi published the article, “Tattoos and Piercings: Issues of Body Modification and the Workplace,” which focuses primarily on private employers, and examines the legal aspects of hiring and employment decisions that are based on the applicant having a tattoo, body piercing, or other body modification. The article, written by Dr. Brian Elzweig, Assistant Professor of Business Law, and Dr. Donna K. Peeples, retired Associate Professor of Management, appeared in the Society for Advancement of Management (SAM) Advanced Management Journal, Vol. 76, Issue 1.
“In general, discrimination in employment decisions based on tattooing and body piercing is not illegal,” said Elzweig. “However, there are exceptions to this general rule when individuals claim that their tattoo or piercing is part of them being a member of a protected class or religion.”
According to the article, courts have consistently rejected public employees' constitutional claims, the most common of which is that the tattoo or piercing is protected by the First Amendment provisions of freedom of speech or expression. Tattoos and piercings are considered to be mutable (alterable) characteristics; therefore, they do not automatically receive any special legal protection. Outside of any discriminatory intent that would be in violation of Title VII of the Civil Rights Act of 1964 (Title VII) as amended, mutable characteristics generally are permitted as a means of discrimination.
Elzweig and Peeples have developed a list of nine key points for employers to consider as part of their policies and procedures. Employers should take special care to familiarize themselves with Title VII cases, take claims of religious and other forms of discrimination seriously, know the implications of the dress code, and make employees understand the repercussions of violating the dress code.
“Employees need to use discretion in the workplace,” Elzweig said. “In addition, employers need to recognize that the paradigm is shifting and that body modifications are becoming more mainstream.”
A Harris Poll survey published in 2008 related information on the prevalence of body piercing and tattoos, as well as people's attitudes toward tattoos. The poll indicated that 32 percent of people aged 25 to 29 had a tattoo, 25 percent of those aged 30 to 39 had tattoos, 12 percent of those aged 40 to 49, 8 percent of those aged 50 to 54, and 9 percent of those aged 65 and over. The study revealed that the percentage of people aged 25 to 49 had become tattooed at a much higher rate than previous generations.