Although there are no laws either for or against tattoos in the workplace, employers can, and often do, discriminate against potential employees based on their tattoos.
When Police Minister Bheki Cele said that people with tattoos cannot be police officers earlier this year, he stirred a massive hornet’s nest.
People questioned how, in a country that has a constitutionally guaranteed right to personal autonomy and freedom of expression, the minister could get away with the comments he made while running through the list of requirements for new officers and saying: “When you have a tattoo, we don’t hire you because you have a tendency of being a gangster.”
Discrimination based on your appearance is an ever-changing area of law that impacts employees and potential candidates worldwide, says Hugo Pienaar and Oliver Marshall from Cliffe, Dekker Hofmeyr.
“Subconscious appearance preferences founded on societal norms lead to employees and potential candidates being the subject of discrimination when they fail to meet certain unilaterally imposed standards”
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Your tattoo rights in terms of the Constitution
The Constitution introduced several important rights in the sphere of labour relations which now allow for protection against various previously unrecognised grounds of discrimination. One of these is discrimination on the grounds of personal appearance.
Pienaar and Marshall say tattoos have traditionally been associated with fringe personalities who donned them as a way of signifying their outsider status and rejection of mainstream society.
“With the exception of outrightly offensive tattoos that are, for example, racist or sexist, tattoos in modern times have become more common and accepted in society.”
Tattoos are a mutable characteristic, meaning that they do not automatically qualify for legal protection.
“Tattoos and piercings are commonly dealt with in an employer’s dress code and grooming standard. However, the recent increase in litigation in other jurisdictions coupled with the public outcry to minister Cele’s comments warrants a focus on discrimination on the basis of tattoos.
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Tattoos and the workplace in the US and UK
In the US, no specific federal law governs personal appearance discrimination in employment and as a result, individual states and districts enacted prohibitions on personal appearance discrimination which extend to your manner or style of dress and grooming.
In areas where no anti-discrimination law against personal appearance exists, employees are often required to link the appearance discrimination to a protected category of discrimination that is already in existence, Marshall says.
This solution, although appealing, has been predominantly unsuccessful when placed before the courts, Pienaar points out.
The courts sided with a police department in one case of tattoo discrimination on the basis of freedom of expression and held that the employee’s tattoos were extensive enough to be regarded as unprofessional.
In another case, the court dealt with tattoo discrimination justified by freedom of religion and rejected the employee’s claim that her clear eyebrow stud should be allowed for religious reasons, stating that it went beyond reasonable accommodation, but allowed it on the grounds of discrimination on the basis of sex and not appearance.
In yet another case, the court agreed that a female employee being required to cover up her tattoos when her male colleague was not expected to amounts to discrimination, not on the basis of appearance, but on the basis of sex.
“Appearance discrimination in the US is still an issue which has not been fully dealt with. Where it has been challenged, employees have had to implicate a listed ground of discrimination and have, in general, been quite unsuccessful,” Marshall says.
In the UK, employees who have been or are being discriminated against based on their appearance are usually not afforded automatic legal protection and therefore employees have had to link the discrimination to a listed ground in order to bolster their claim, Pienaar says.
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What happens in SA?
In South Africa, much like the USA and UK, there are no express provisions in section 9(3) of the Constitution or section 6(1) of the Employment Equity Act prohibiting appearance based on tattoo discrimination.
Pienaar says therefore, employees will also have to base their claims on a listed ground and argue that personal appearance should be protected under freedom of expression or personal dignity.
“Unlike in the USA and UK, however, South African courts have reaffirmed their commitment to values of dignity, freedom of religion, opinion and expression and equality over restrictions on a person’s personal appearance.”
In a recent case, the court dealt with two female metro police officers who refused to cut their hair and ruled that individual expression in this case trumped the business needs which rendered the training agreements unlawful.
In another case, the court held that if your hairstyle does not impede your ability to perform a job, a policy requiring you to change your hairstyle could infringe on rights such as the right to religion.
The court reiterated in another case that despite agreeing that the policy to have trimmed beards was an inherent requirement of the job, it is important that policies adhere to your constitutional rights.
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Minister Cele’s comments
“Minister Cele’s statement regarding the hiring of candidates with tattoos triggers several potential rights infringements due to South Africa’s race, ethnic, religious and cultural diversity. This fact is highlighted by judicial decisions in South Africa which have refused to follow the international approach to appearance discrimination,” Pienaar says.
Therefore, although South African legislation does not expressly provide for the right not to be discriminated against based on your tattoos, the courts have, in general, taken the side of the employee where a policy limits a chosen appearance that is connected to religion, expression or dignity, Marshall points out.
“As such, the minister’s statement, if put into practice could, if challenged on the basis of a constitutional right or the provisions of the Labour Relations Act, be considered discriminatory and thus unlawful.