Tattoos and Piercings: Issues of Body Modification and the Workplace
Elzweig, Brian, Peeples, Donna K., SAM Advanced Management Journal
The huge increase in tattoos and body piercings has caused workplace conflicts that, not surprisingly, have landed in the courts. In general, discrimination in employment decisions based on tattoos or piercings is not illegal unless the person with the "modification" is a member of a protected class, particularly a class based on religion. In litigation involving private employers--the focus of this article--employers have been largely successful so far. However, as trends and views change, employers should keep a close eye on decisions involving Title VII of the Civil Rights Act of 1964. The authors offer nine suggestions for employers as they navigate the tricky waters of this particular societal trend.
Tattoos and body piercing-described as a piercing anywhere in the body besides the soft spot of the earlobe--has become more popular in recent years. As reported by the Associated Press,
"A generation or two ago ... tattoos--to say nothing of [a] pierced nose--would have placed [one] in the select company of soldiers, sailors, bikers and carnival workers" (Tattoos now mainstream, 2006). However, "[t]attoos are almost ubiquitous these days, with body piercing likely following close behind" (Harkins, 2006). Tattooing and body piercing are becoming so commonplace that tattoo and piercing boutiques are surfacing in malls (Albright, 2009).
This article examines the legal aspects with respect to hiring and employment decisions that are based at least partly on the applicant or employee having a tattoo, body piercing, or other body modification. In general, as discussed later, discrimination in employment decisions based on tattooing and body piercing is not illegal. Exceptions to this general rule come when individuals claim that the tattoo or piercing is part of their being a member of a protected class (primarily, but not solely limited to, based on religion). This article focuses on claims made to private, not public, employers. The legal analysis of protection for public and private employees is similar outside of extra-constitutional protections afforded to public employees. However, public employees have been unsuccessful in these claims when it comes to tattoos and body piercings.
Increase in Tattooing and Body Piercing
Although tattooing is not a new phenomenon, the number of people who have tattoos has increased significantly and continues to rise. Life magazine estimated in 1936 that only 10% of the American population was tattooed in whole or in part (One out of ten Americans is tattooed, 1936). While it is hard to determine the exact percentage of the population with tattoos, data suggest that tattooing is becoming more popular, especially in younger demographics. In addition to tattoos, it appears that a relatively large percentage of younger people have piercings other than on the soft part of the earlobes. A 2006 study conducted by the Pew Research Center compared what they called Generation Next (people born between 1981 and 1988) with Generation X (born between 1966 and 1980) and baby boomers (born between 1946 and 1965). The study found that about 10% of baby boomers got a tattoo at some point in their lives, a statistic consistent with Life magazine's 1936 estimate. However, when comparing Generation X and Generation Next, the rate of tattooing jumped to 40% and 36% respectively. The study found that 6% of baby boomers had a body piercing at some point, for Generation X the rate was 22%, and Generation Next it was 30% (How young people view their lives, futures, and politics, 2007).
A 2006 study published in the Journal of the American Academy of Dermatology of Americans aged 18 to 50 found that the overall rate of tattooing was 24%, with 22% of women and 26% of men having at least one. The study also reported that 14% of respondents, at some time, had a body piercing--21% of women and 8% of men within that age range (Laumann and Derick, 2006). …