One hundred years ago only ‘common people’ (sailors, gypsies and natives) had tattoos. Now they are common place. Greg Cain and Amy Cunningham look at their place in the workplace.

As the saying goes, first impressions last. Many employers baulk at hiring someone with highly visible tattoos, especially when the employee will have close customer contact. There is a common fear (whether justified or not) that visible tattoos will lower a customer’s estimation of the business, and in particular its professionalism. 

However, the popularity of tattoos is on the rise. Traditional tattooing such as Ta Moko has become more popular, and the tattoos sported by celebrities like David Beckham have contributed to the trend. Tattoos are becoming positively mainstream, both in New Zealand and abroad.

Ruling out candidates with tattoos, however, can land employers in hot water. Of course, tattoos are not a ground of unlawful discrimination under the Human Rights Act 1993. Therefore, employers may think they are on safe ground in rejecting a candidate with a tattoo. However, this may constitute indirect discrimination, because it could have the effect of discriminating against a racial group (if it can be established that they are more likely to have tattoos), or a religious group (for whom tattoos are sacred). 

For instance, Ta Moko, traditional Maori tattooing, is taonga to Maori, as moko contain ancestral or tribal messages specific to the wearer. Traditionally these tell the story of the wearer’s family, tribal affiliations and standing. The only employment case in New Zealand about tattoos involved a complaint to the Human Rights Commission by a woman with a facial moko. She had applied for a job at a tearoom in Sanson, but when the employer met with her, she was not offered the job. The complaint was settled before it was heard, and so there is still no employment decision in New Zealand on this point. 
In contrast, the United States has seen numerous discrimination cases brought against employers who have taken a stand on visible tattoos in the workplace. In EEOC v Red Robin Gourmet Burgers Inc the Court upheld a discrimination claim against an employer who refused to make an exception to its ‘no visible body art’ policy for an employee’s Kemetic religion (an ancient Egyptian faith). The employee’s religious beliefs made it a sin to conceal his tattoos, which contained religious inscriptions. 

Red Robin had a dress code prohibiting employees from having visible tattoos. They refused to make any exception to the policy to accommodate this particular employee. This error of judgement cost the company $150,000, and they were effectively forced to change their policies.

In New Zealand, the Human Rights Act states that where a religion requires a particular practice to be followed, employers must accommodate it providing it does not “unreasonably disrupt” the employer’s activities. In customer facing roles, employers may be justified in refusing to employ people who have visible tattoos, even linked to their race or religion. Also, employers do have a defence to indirect discrimination claims where good reason for the policy or practice can be established. The employer is likely to have “good reason” in relation to many customer facing roles. 

Employers should however be cautious when recruiting, particularly for roles that are not customer-facing. As the case from the US shows, simply assuming that it’s alright to reject a candidate with a tattoo, or dismiss an existing employee, is dangerous. The employer has to consider the issues more carefully than that, and in particular, find out whether the tattoo is linked to the employee’s religion or race. Otherwise, the employer may find itself up before the Employment Relations Authority or the Human Rights Commission.

Greg Cain and Amy Cunningham are lawyers with Minter Ellison Rudd Watts, www.minterellison.co.nz