Abstract

In the last twenty years, there has been a significant rise in the popularity of tattoos. Once relegated to the marginal realm of sailors, motorcycle gang members, or dock workers, tattoos are now proudly displayed by NBA stars, rock artists, and film actors. Perhaps not surprisingly, American workers, particularly younger workers, have emulated their idols and obtained tattoos too—at a remarkable rate. In fact, a 2012 Harris Poll found that one in five American adults had at least one tattoo. And while increasing percentages of Americans view tattoos as acceptable (indeed, even as art), tattoos still carry a persistent stigma among many members of society—including many employers. There are a number of media reports of tattooed applicants being denied jobs, and even stories of employees being disciplined or discharged for having tattoos. But with what result? What liability may an employer have for refusing to hire an applicant with a tattoo, or for discharging a tattooed employee? This article summarizes the current state of the law on this increasingly complicated and timely question. Claims have been brought by public sector applicants and employees alleging violations of the their Fourteenth Amendment right to equal protection and/or their First Amendment right to free speech, and by private sector applicants and employees alleging violations of Title VII of the Civil Rights Act of 1964 or state nondiscrimination laws. As the number of tattooed applicants and employees increases, we may expect to see further challenges to an employer’s decision to reject a tattooed applicant or to discipline a tattooed employee.

Document Type

Article

Publication Date

2016

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