Anecdotal second-hand reports of tattoos or piercings causing problems for employees or prospective employees are common, but Motif was unable to find any labor lawyer who had been approached on the issue: It simply has not come up, several said. This is not evidence of an absence of incidents, just that hardly anyone has waved cash at an attorney wanting to pursue an actual case – no surprise, given the unfavorable chance of success, as we learned.
Nor could Steve Brown, executive director of the RI chapter of the American Civil Liberties Union (ACLU), recall his organization receiving a complaint on the issue. Generally, he said, under RI law private employers have substantial latitude to impose requirements concerning appearance, including dress, hair and tattoos, as long as they do so in a manner that does not discriminate on the basis of an otherwise protected category, such as sex, race or religion. For example, he said, a tattoo policy with different rules for men and women would be suspect in court.
The ACLU website has an information sheet in question-and-answer format about workplace privacy – riaclu.org/know-your-rights/pamphlets/your-rights-to-workplace-privacy-in-rhode-island/#Personal – with a section on “Personal Lifestyle and Off-Duty Activities” that echoes what Brown said. Even where religious exercise is at issue, the ACLU sheet notes that the federal Court of Appeals for the First Circuit, which includes RI, has sided with employers in taking “a broader view than some other courts in defining ‘undue hardship.’ It upheld a company’s decision to terminate an employee who wished to display multiple facial piercings as part of her religious beliefs, holding that the adverse effect on the ‘the employer’s public image’ constituted an undue hardship.”
For public employees, the ACLU views having tattoos or piercings as a form of self-expression and therefore protected under the First Amendment, Brown said, but the analysis of such situations would turn heavily on their particular facts. For example, a court would likely validate substantially different rules applicable to substantially different kinds of public employees, including police or correctional officers, school teachers, trash collectors and even members of the armed forces. In Brown’s opinion, any government rules restricting public employees from self-expression would be subject to “strict scrutiny,” the highest legal burden requiring the government to demonstrate a “compelling interest.”
Active and reserve military is a special case, permitted wide deference by the courts. The Navy Times in 2016 reported a revised tattoo policy applicable to Navy sailors who would be “allowed to have neck tattoos, sleeves and even markings behind their ears under the new policy, the most lenient of any military service. Only their heads are off limits under the new policy.” According to The Navy Times, the Marines (long a holdout for a total ban) “are easing their tattoo rules but do not allow sleeves,” and “in 2015, the Army updated its rules to allow sleeve tattoos, but it does not permit soldiers to have ink on their necks or hands, which would be visible in the Army Service Uniform.” The military also applies strict content guidelines, so “tattoos that are obscene, sexually explicit and/or advocate discrimination based on sex, race, religion, ethnicity or national origin” as well as “tattoos that symbolize affiliation with gangs, supremacist or extremist groups, or advocate illegal drug use” are prohibited.
Rather than the law, it is changing social attitudes and increasing popular acceptance that is causing even the most conservative employers to adopt more lenient policies toward tattoos and piercings. Tattoos are simply so common now that maintaining policies against them would make finding employees impossible. A 2010 analysis (“Millennials: Confident. Connected. Open to Change.”) by the Pew Research Center found that 38% of Millennials (born 1981-1996) have at least one tattoo, compared to 32% of Gen-Xers (born 1965-1980), 15% of Baby Boomers (born 1946-1964), and 6% of the Silent Generation (born 1928-1945). Of tattooed Millennials, 31% have one, 50% have two to five, and 18% have six or more; of tattooed non-Millennials, 47% have one and 9% have six or more. Men and women are about equally likely to have a tattoo, although 23% of men and 13% of women are likely to have a tattoo that is usually visible; 72% of tattooed adults say their tattoos are not usually visible.
A 2018 report by Salary.com, a website that provides compensation research data, found in a survey of over 2,700 workers that “76% of respondents feel tattoos and piercings hurt an applicant’s chances of being hired during a job interview,” that “39%… believe employees with tattoos and piercings reflect poorly on their employers,” and that “42% feel visible tattoos are always inappropriate at work, with 55% reporting the same thing about body piercings,” but that “only 4% of those with tattoos and piercings report having faced actual discrimination because of their ink and body art.” Views were strongly correlated with age of the respondent and the study concludes, “In a nutshell, the older you are the less tolerant you become regarding tattoos. Not surprisingly, people 18-25 were the most accepting of tattoos in the office with only 22% claiming they are inappropriate. That percentage jumps in each age group, maxing out at 63% of people age 60 and older finding tattoos objectionable at work.”
According to a Pew Research report in 2018, even police departments, who have been among the most likely to hold traditional views correlating tattoos with social deviance and criminality, are coming around to the realization that the recruiting pool is infeasibly small unless they adopt more lenient policies, especially as police work has become less attractive and the number of active officers declined by more than 3% in the five-year period from 2013 to 2018, resulting in personnel shortages in 88% of law enforcement agencies. Because former soldiers are among the most sought-after candidates for civilian police work, changing tattoo policies in the military are another practical driver of changing policies in police hiring.
Regardless of the law providing little to no protection for employees with tattoos and piercings, it is practical reality that seems to have forced employers to accept them.