Discrimination: Tattoo’s and Body Modification challenge to Business Casual and Business Attire

The face of the up and coming American and Canadian worker is changing and it’s often decorated with ink and metal. A recent study in the Journal of American Academy of Dermatology has found that just under half of people in their 20’s have either a tattoo or body piercing other than traditional earrings, and the percentage grows yearly. Is this rebellion against societal norms indicative of deeper issues or is this simply a form of freedom of expression protected by law? At what point does one person’s “body art” become another’s graffiti?

Discrimination is defined under various US laws, including the Constitution, the Civil Rights Act and the Americans with Disability Act (ADA) among other laws and under such Federal law, employers generally cannot discriminate against employees on the basis of Race, Sex, Pregnancy, Religion, National Origin, Disability (Physical or Mental), Age, Military Service or Affiliation, Bankruptcy, Genetic Information or Citizenship status. The Canadian Charter of Rights and Freedom and Employment Equity Act prohibits discrimination because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It also prohibits discrimination on “analogous” grounds – meaning comparable grounds not listed in section 15. The Courts have said that something “analogous” is a personal characteristic that you can’t change at all, or you can’t change without great personal cost or difficulty – like sexual orientation or citizenship. Neither the respective American or Canadian laws define personal choice body modification such as tattoo’s or piercings as grounds to claim discrimination.

Both the American and Canadian laws outline certain instances known as Bona Fide Occupational Qualifications(BFOQ) in US employment law and Bona Fide Occupational Requirements (BFOR) in Canadian employment law as there are some select few qualities or attributes that employers are allowed to consider when making hiring decisions and retention of employees, qualities that, when considered in other contexts would constitute discrimination. The Bona Fide Occupational Requirement that comes into play with respect to Tattoo’s and Body modification is “Positioning and Company Image”. Positioning can be defined by both product and market. By product in that the company’s product is premium and thus different than all others on the market. Market image is defined as the market position that defines the company from others in the market. Product and market position help define the company image but are not the only factors. A company’s image is the combination of thoughts, feelings, beliefs, opinions and visions people have about a company and their products. Thus the company image is defined as much by the perceptions of clientele they are trying to sell to as it relates to their customer service, hiring practices, advertising and marketing materials of the company.

Appearance is reality. Company image, company credibility, company professionalism all go hand in hand. They act as reassurances to clients of the veracity of their advice or the quality and professionalism of the service and of course the perceived value of such products and services. This is true when discussing law, accounting and medical offices as it is when discussing gardening and landscaping companies and retail stores. Employers establish the company, have vision for their brand, take the risks and make the rules. Understanding one’s clientele keeps business in business.

In job interviews, good first impressions are everything. Dress and appearance is one of the most common factors used in making decisions. While it is subjective, we use this all the time in our purchasing decisions. Given a choice, we will shop at stores that are clean, modern looking and have merchandize attractively displayed as opposed to ones that are dirty, run down or merchandize haphazardly displayed (see Zellers in Canada). This is natural and over time we identify with that brand, that image as something we trust in and can buy products or services from. There is nothing wrong with body art, but we all must realize that dress and appearance make a statement about a person.

For prospective employee’s preparing for a job interview, make sure your appearance is saying the same things you plan to verbalize. I’m professional, trust worthy and have the skills that can bring value to the organization. If that means removing piercings and covering up tattoo’s to greatly increase your chances of landing a job (and keeping it), then so be it. For employers best practices, by managing your brand and company image, a detailed written company dress code policy that clearly defines Bona Fide Occupational Qualifications as it relates to dress and deportment to maintain the company standing in your market and industry is the pro-active way to deal with any legal challenges to your hiring decisions over body art.

For those who cry “personal freedom” and discrimination over failing to find employment due to body art and modification – your personal need for self-expression is not an employer’s business requirement to accept it.