Magazine article Parks & Recreation

The Stink over Ink: The Intersection of Tattoos, Free Speech and Employer Mandates

Magazine article Parks & Recreation

The Stink over Ink: The Intersection of Tattoos, Free Speech and Employer Mandates

Article excerpt

At Salem State College's freshman orientation last year, Professor Robin Benton asked students without tattoos or piercings to stand up. Of the 500 students present, only a handful moved from their seats.

No longer restricted to "I love Mom," spiritual symbols, cartoons and the like, tattoos of various shapes, sizes and symbols are now proudly displayed on nearly every body part. All demographic boundaries--athletes, coworkers and employees of all ages, classes, ethnic groups and genders--now tout what used to be the purview primarily of the rough-and-tumble set. Given the popularity of the practice, employers need to rethink potential prejudices about tattooing and focus on pertinent matters.

Is Ink Speech?

Can employers restrict an employee's First Amendment right to freedom of expression by requiring employees to cover tattoos?

For private employers, the answer is a resounding "yes." Any tattoo that doesn't support the corporate image may be restricted, such as by requiring the employee to cover the tattoo. Private employers may also deny employment to tattooed applicants for the same reason.

For public employers, the test is much more stringent, as the government's ability to restrict the First Amendment rights of citizens is limited. Government employers may restrict freedom of speech or expression provided the regulation is narrowly tailored to meet an important government interest.

In such circumstances, narrowly drawn policies that restrict freedom of expression based upon the content of the message being sent by the tattoo may be permissible. A common example of a content-based restriction would be a policy requiring employees or program participants to cover tattoos of Nazi symbols or insignias. Such artwork may be offensive enough to elicit a significant emotional or physical response from those viewing the tattoo and could, therefore, be restricted.

Deliberately offensive or demeaning artwork that offends the general mores of the community can create a hostile work environment and can, therefore, be prohibited based upon state sexual harassment laws, anti-discrimination laws and the employer's sexual harassment policy.

Ink Issues

Risk-management strategies need to look beyond prohibitions against tattoos that could be considered harassing. Employers also need to address specific risks associated with tattoos.

All fresh tattoos should be considered open wounds. They present the same health concerns as all other open wounds, including cuts and abrasions. (Once healed, the tattoo doesn't present a public health risk.) Because it can take up to three weeks for the skin to heal, athletes with fresh tattoos should take care to cover their wounds with an appropriate bandage during practice or play. Staff who work outside must keep tattoos covered until the skin heals, and should avoid harsh environments that utilize chemicals, such as fertilizer and lye. This practice will help prevent infection and minimize the inadvertent sharing of body fluids.

Tattoos--new and old--have been linked to increased risks of skin cancer. As such, employers should include language specific to tattoos in their policies regarding sun protection for all employees. Specifically, personnel manuals should require employees to take personal responsibility for applying sun screen with a sun protection factor of at least 30 to all tattooed areas exposed to the sun. …

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