Can your boss ban your tattoo?
New Zealanders are amongst the most tattooed people in the developed world, with nearly one in five adults having some form of ink. Tattoos also have important cultural significance in New Zealand, where ta moko – traditional Maori tattooing, often on the face – is a taonga, indicating a person’s genealogy and social standing.
Despite this, there is still debate around the acceptability of tattoos in the workplace. Whilst there is a growing acceptance of visible tattoos generally, there are still negative perceptions held by many, often as a result of the association with gang culture.
A recent Stuff article illustrates this point. A young man, keen to get his life on track after a stint in jail, is facing difficulty in getting a job after tattooing “DEVAST8” over half his face while drunk on homebrew in his jail cell in Christchurch.
While this is at the extreme end of the spectrum, it does raise an interesting question as to the selection criteria that employers can legally take into account during recruitment, as well as the extent to which employers can impose their own “standards of appearance” in their workplaces.
The starting point for recruitment is that there are 13 specific prohibited grounds of discrimination set out in the Human Rights Act, including (but not limited to) age, marital status, race, religious belief and sex. Anything falling outside of this list is effectively fair game. An employer can specify physical characteristics such as height, weight or strength where it is necessary in order for the job to be performed satisfactorily.
However, employers should be wary when specifying physical characteristics so as not to risk being guilty of indirect discrimination. This occurs when what may seem like a neutral job condition has the effect of excluding a group of job applicants on one of the grounds prohibited by the Act.
Take tattoos for example. In general, a policy banning tattoos is not unlawful. However, if the tattoo is of religious or ethnic significance then a complaint of indirect discrimination could be made. In 2001, the Human Rights Commission found that denying entry into a bar to a Maori woman with a facial tattoo was in breach of the indirect discrimination provisions of the Human Rights Act. Whilst this case did not relate specifically to employment, the Commissioner’s advice was for employers to take note.
Employers also often seek to enforce standards of dress and appearance in the workplace, which can present a number of difficulties. Whether a dress code is enforceable by an employer will turn on the extent to which the standards of dress are reasonable in the context of the company’s business, as well as the procedural fairness in enforcing such standards.
In 2014, Ray White Real Estate was ordered to pay Ms Hangar, a former property manager, $18,000 after she was suspended for having pink hair. The company’s subsequent actions led to her resign and claim constructive dismissal. Ray White claimed that she had breached the employment agreement for not maintaining a “high standard of personal presentation” and staying “consistent with a professional, neat and well-groomed image”.
The Employment Relations Authority found that failing to discuss with Ms Hangar why the pink streaks were an issue, or to consider what efforts she had made to remove them, was unfair and in breach of the employment agreement.
This case highlights that while employers can seek to enforce standards of dress at work, they must be reasonable and enforced in a procedurally fair manner. A refusal to adhere to dress standards is unlikely to be grounds for dismissal unless the action is repeated following warning(s) being issued.
In another case, the Employment Relations Authority awarded $13,250 in compensation after a transgender hairdresser was forced out of her job after revealing she was transitioning to living as a woman. While the employer supported the move on a personal level, he was concerned about the impact it would have on the salon as it didn't fit the "commercial profile of the business".
The Authority found that the employer failed to comply with its obligations of good faith in making the employee feel unwelcome at work. The employer was also found to have failed to comply with the requirements of procedural fairness.
The overt sexism of dress codes in the workplace was highlighted in 2015 when a woman in the UK was sent home without pay by her employer for not wearing high heels. The employment agency she was working for demanded that their female employees wear non-opaque tights, have hair with “no visible roots”, and wear shoes with a heel 2 to 4 inches high.
This case received attention around the world and drew widespread criticism, as it highlighted the discriminatory nature of dress codes, in addition to the unreasonable nature of the employer's demands. Following an online petition, the UK Government reminded employers that dress codes must be reasonable and require equivalent standards for both men and women.
What is clear is that employers should tread carefully when using physical appearance or characteristics as selection criteria or seeking to enforce standards of dress at work. Any action taken must be procedurally fair, and employers need to ensure that their policies do not indirectly or directly favour one group of people over another.
As for the man with the facial tattoo – he's now been inundated with job offers.