KEY POINTS:
Tattoos are becoming more popular, both in New Zealand and abroad. This article in the New York Times suggests they are becoming positively mainstream in the US, with even doctors and funeral directors sporting tattoos - and in highly visible places such
as the neck and hands.
Employers often see it as an issue when an employee with visible tattoos is customer-facing, fearing that they will put off customers.
For some people, though, tattoos are not just about looks. Ta Moko, traditional Maori tattooing, is taonga to Maori - because moko contain ancestral or tribal messages specific to the wearer, which tell the story of the wearer's family, tribal affiliations and standing.
Some employees have brought discrimination cases in the US against employers cracking down on tattoos in visible places. Most have not succeeded, although there was a different result in one case. Red Robin Gourmet Burgers, a national restaurant chain, was sued by an employee for discrimination, when it refused to make an exception to its no visible body art policy - for the employee's Kemetic religion (an ancient Egyptian faith). The employee's religious beliefs made it a sin to conceal his tattoos, which contained religious inscriptions.
The employee had the tattoos when he was hired at Red Robin and had not taken any actions to conceal them. He worked at Red Robin for approximately six months, without complaints from customers, co-workers or supervisors, even though Red Robin had a dress code that prohibited employees from having visible tattoos. It was not until a new manager saw the tattoos that the employee was fired for not covering them.
After the Court rejected its defence, Red Robin settled the case by paying $150,000 and agreeing to policy changes. Essentially the employer lost because it refused to consider making an exception for him, based on an unproven assumption that this would cause it "undue hardship".
The only New Zealand employment case about tattoos involved a complaint to the Human Rights Commission by a woman with a moko covering part of her face. She applied for a job at a tearoom in Sanson, and said the employer's initial reaction was positive. After the employer met her, however, it declined to offer her the job. Her complaint was settled before any hearing, and so there is no employment decision in New Zealand on this point.
In a non-employment case, a bar owner paid $3,000 to settle a complaint brought by a woman refused entry to a Gisborne pub because of her moko. The settlement document acknowledged that the bar's "no facial tattoos" policy breached the Human Rights Act.
The Human Rights Act states that where a religion requires a particular practice to be followed, employers must accommodate it so long as this does not "unreasonably disrupt" the employer's activities. In customer facing roles, employers may be justified in refusing to employ people who have visible tattoos as part of their religion. However, this cannot just be assumed, or the employer may find itself up before the Human Rights Commission.
Somehow I don't think we've seen the last of this issue.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
Photo: Dean Purcell