A Matter of Intergenerational Prejudice: Tattoos and Employment Law

By: Tina ZhiYu Ye


In the U.K and elsewhere, employers have every right to reject applicants, or dismiss existing employees, solely on the basis of body art.


It can be said that this is common knowledge, especially for those already sporting large tattoos or those who are thinking of getting one. It is a trite yet potent rhetoric used by concerned parents trying to dissuade their kids from getting inked. And unfortunately, they are right.


There is no legal protection for those rejected on their job application because of body art, nor any likely remedies for employees deciding to indulge in tattoos only to find themselves without a job afterwards. There is no outright employment law on tattoos, and there remains little statutory restrictions over company dress code and appearance policies other than the protected characteristics under Equality Act 2010.


What this article attempts to investigate is whether those with a penchant for expensive body art will ever find legal protection for ‘unfair’ employment practises. It is of the author’s opinion that the current perception of tattoos in the workplace, from both the employers’ and the wider social perspective, is outdated and requires reframing. It is an arbitrary choice to reject applicants or fire employees based on body art, and it may even be suggested that such practises may be scrutinised under provisions of the Equality Act 2010.


Hired… or Not?


In the UK, hiring policies are regulated by the Equality Act 2010. It is unlawful for employers to make hiring decisions based on protected characteristics of age, disability, race, gender assignment, marriage, pregnancy, religion, sex, and sexual orientation.[1] Discrimination in the hiring stage can extend to company advertisements. For example, if an advert only seeks to recruit a particular age group, then such practice would contravene the law.[2]


As expected, tattoos are not covered under one of the protected characteristics. Aside from obvious discrimination over cultural tattoos such as the moko or bindi, a reason of ‘unprofessional’ will more than likely be deemed as a legitimate explanation for an employer to reject an applicant. This is especially prevalent in sectors where client interaction is key to the company’s success.[3] ‘Lookism’ is the term coined by the media — individuals who look the part will likely be hired over those who do not.[4] As will be soon discussed, large tattoo pieces are already associated with various social stigmas; as such, applicants sporting these pieces may find themselves in a disadvantaged spot before even heading into the interview room.


Attitudes for tattoos in the workplace seem to take on a certain ‘know the time and place’ quality. ‘A neck or facial tattoo may be acceptable for a funky tattooed barber in Shoreditch, though the same will not be true for a City Investment Banker or Solicitor’[5] writes Samira Cakali for SCE Solicitors. Similarly, BBC News concluded that certain professions, such as law, healthcare, and finance, are said to frown upon visible tattoos in the workplace.[6] This feeds into the narrative that tattoos are for impulsive, counterculture, irresponsible individuals; such that the decision to acquire a tattoo, its artistic value notwithstanding, is a thoughtless action without merit and ultimately speaks truth about the person’s employability.


You’re Outta Here


Dismissal of employees can also be based on similar reasons. Under the Employment Rights Act 1996 sections 98, fair dismissal can be on one of the five grounds: conduct, capability, redundancy, legal reason, and ‘some other substantial reason’.[7] Discrimination law also applies here under Equality Act 2010. At the heart of it, a dismissal is fair if it is reasonable, non-discriminatory, and follows all procedural requirements.


In the case of tattoos, an employer can dismiss an employee for their body art. This dismissal would fall under conduct, which is defined as ‘doing something inappropriate or unacceptable’. If the company policy is for employees to present themselves in a professional manner, then the employer would be perfectly justified to say that the employee’s tattoo was a breach of this policy and therefore amounted to misconduct. Of course, the policy cannot be a mere personal preference by the manager but rather served a legitimate need for the business. But, as the next section will point out, with the current perception of tattoos as an antonym for professionalism, it would not be hard for employers to argue that the dismissal of tattooed employees is for the merit of the company.


It All Comes Down to Inter-Generation Prejudice


Social perception of tattoos is drastically divided between generations. It is apt to say that it is another issue where millennials and gen z knock heads with the boomers. The generational prejudice over tattoos can be traced to changes in attitude on body art. The elderly may associate tattoos with biker gangs like Hells Angels or organised crime units like the Japanese Yakuza (in fact, Japan still bans tattooed individuals from entering public facilities like bath houses and swimming pools),[8] the younger generations view tattoos as an art form and a form of self-expression.[9]


Media portrayals of tattoos have also shaped minds quite differently between generations. Tattoos were once used as a visual cue to inform the audience that the character was a deviant — either a hardened criminal who spent their time in prison or a queer-coded villain who embodied radical ideas in threat to the Old World Order. To get inked is to cast away a life of stability and normalcy: the nightmare of all parents. In contrast, the younger generation have come to embrace tattoos as a trend, a fashion symbol. With the rise of social media, tattoo artists can amass over hundreds of thousands of followers as they post photos of their work, showcasing a well-curated gallery of art and at the same time gaining influence and profits alike.[10]


Statistics back this. Data has shown that age groups 18-39 view tattoos more favourably than ages 40+[11], and in the US, 36% of citizens aged 18-29 have at least one tattoo compared to 11% of people aged 50-64.[12] There is a clear difference between generations when it comes to getting tattoos, and it can be summarily concluded that willingness to get inked is indicative of a favourable perception of body art amongst younger generations.


So, in light of this understanding, could existing hiring and dismissal practices on tattoos be considered an indirect discrimination over age?


Consider the following scenarios:


● A company specifies ‘professional and competent’ in its hiring advert. It rejects an applicant with a neck tattoo because they deemed it unprofessional.


● A company has a policy for employees to appear ‘approachable’. They dismissed an employee who chose to get a full-sleeve tattoo because they think it may scare the customers.


In all three scenarios, there is no outward discrimination — the company apply an objective criteria for all applicants and employees. However, subjectively, with references to the words ‘professional’ and ‘approachable’, there may an indirect discrimination towards younger employees, who do not see tattoos as being unprofessional or intimidating. In a pool of applicants all varying in age, the hiring manager in the first scenario may be favouring older applicants over younger applicants, thereby indirectly discriminating on basis of age. Similarly, as younger employees are more likely to get inked, the company in the second scenario may find themselves disproportionately dismissing employees of a younger demographic.


It may be effectively argued that because young people do not share the same perception of tattoos as the older generation and are thus more likely to get tattoos, they are discriminated against because of their age.


One must also keep in mind that the upper echelon in a company (those with the power to make hiring decisions and to draft company policies) are typically older individuals. It is not inconceivable, then, to assume that these policies carry a ‘Boomer mindset’ when it comes to tattooed employees. This is especially detrimental to young professionals in the so-claimed ‘serious’ industries, such as Law, Finance, and Healthcare, where the epitome of professional appearance is a monochromatic suit and a lifeless smile.


Taking it to Court?


Given this line of argument, how likely is this claim of indirect discrimination on the grounds of age to actually succeed in practice? Can a young tattoo fanatic hold a job while also getting more ink at the same time?


Currently, there is little likelihood that such an argument would succeed in court.


Firstly, while social attitudes are indeed changing regarding tattoos, the bygone adage of ‘Want a job? Don’t get a tattoo’ still stands strong against the current. This can be seen by a lacuna of legal claims and discourse around the subject — it is not seen as a systemic problem but rather an individual choice which one must take individual responsibilities for.


Secondly, even when tattoos and employment law are brought to court, such as in the New Zealand case of Haupini v SRCC Holdings Ltd[13] the court does not see a company-wide ban on tattoos as an infringement of rights (even when the claimant asserted discrimination on race as she had a traditional Maori moko tattoo). This is consistently the current neoliberal ideology, where interference with private business operations is discouraged, and generally public institutions will take a laissez-faire approach to regulating corporate policies (especially with something as minor as appearance and dress-codes). In other words, if the employer claims that they did what they did for the merit of their company, there is little resistance to accepting that reason.


Thirdly, age discrimination under Equality Act 2010 is the only protected characteristic which can be justified on grounds of legitimate aim.[14] This means that if the employer can offer up a reason for their actions, the discrimination would be allowed. In O’Reilly v British Broadcasting Corporation and another[15], the tribunal held that the BBC’s wish to appeal to a younger primetime audience was a legitimate aim. However, it is hopeful to note that in the subsequent case ofSeldon v Clarkson, Wright and Jakes[16] the Supreme Court required the justification to be of nature to public policy rather than particular to the employer’s interest. Although, in the case of tattoos, the struggle against the negative stigma still prevents ready acceptance of body art into all facets of life, meaning that when it comes to public interest tests, the court may be reluctant to side with the tattooed claimant.


Conclusion


The bottom line is this: companies have full discretion as to whether or not they hire and keep you based on your body art. There is little legal protection for tattooed employees to rely on in cases of dismissal or rejections. For the young professionals who wish to step into their career and hold down the fort, it may be wise to heed the cautions of your parents. It is unlikely that the Government will ever adopt any statutory provisions on matters of employment, leaving companies to craft their own policies on body art. Thus, the best chance for tattoos to become an asset instead of a liability is to push for wider acceptance of tattoos in society. This will effectively replace the thinking that body art is unprofessional, and that tattooed employees will be a detriment to business. This also speaks volumes about particular industries where professionalism is associated with certain conservative and elitist ideas of ‘white collar’ workers, which, contentiously, could be linked with the vestige of older generations.


Sources Cited:

[1] ACAS, ‘Recruitment: hiring someone’ (Advisory, Conciliation and Arbitration Service UK) <https://www.acas.org.uk/hiring-someone> accessed 7 February 2022 [2] An example would be requesting that the applicant must have spent 10 years in retail. However, if the advert instead ask for specific level of competence, that would fall outside the scope of discrimination and be in the clear. This seems counterintuitive, as competence levels are usually related to how long someone’s worked in a sector. But that is discussion left for another day. [3] Daniel Thomas, ‘Tattoos at work: Are they still an issue?’ (BBC News, 16 June 2019) <https://www.bbc.co.uk/news/business-48620528> accessed 8 February 2022. [4] IDS Employment Law Brief, ‘When your face doesn’t fit’ [2015] IDS Emp.L.Brief 14-19. [5] Samira Cakali, ‘Tattoos and Discrimination’ (SCE Solicitors, 28 August 2018) <https://scesolicitors.co.uk/news/tattoos-and-discrimination> accessed 8 Feburary 2022. [6] BBC News (n 3). [7] ACAS, ‘Dismissals’ (Advisory, Conciliation and Arbitration Service UK) <https://www.acas.org.uk/dismissals> accessed 7 February 2022. [8] Ingrid Tsai, ‘Big win for tattoo artists: Japan’s Supreme Court rules medical licenses aren’t necessary’ (Sora News 24, 22 September 2020) <https://soranews24.com/2020/09/22/big-win-for-tattoo-artists-japans-supreme-court-rules-medical-licenses-arent-necessary> accessed 7 February 2022. [9] Kristen A Foltz, ‘The Millennial’s Perception of Tattoos: Self Expression or Business Faux Pas?’ [2014] College Student Journal 48 [10] The rise of celebrity tattoo artists also contribute to the glamour of being inked, the most notable studio being Bang Bang Studio NYC. [11] Statista Research Department, ‘Tattoo Percentages by Age UK’ (Statista, 10 July 2015) <https://www.statista.com/statistics/530572/tattoo-percentages-by-age-uk/#statisticContainer> accessed 8 February 2022. [12] Arthur Zuckerman, ‘38 Tattoo Statistics: 20202/2021 Industry, Trends & Demographics’ (Compare Camp, 13 May 2020) <https://comparecamp.com/tattoo-statistics/> accessed 8 February 2022. [13] [2012] NZHRRT 20. [14] Equality Act 2010, s 13(1). [15] ET Case No/2200423/10. [16] [2012] ICR 716.