Yes, you can still get fired for having tattoos

Business, Money, Rights

Tattoos and body art have become such mainstream ways to express oneself that few millennials (or GenXers for that matter), particularly those in more urban environments, would ever think of them as professional hindrances. But broad acceptance of tattoos (even the bad ones!) is still fairly recent, and the existence of your ink may yet prevent you from finding employment, or even keeping your current job.

At-will employers hold the power

Most employment advisors recommend that any job-seeker reserve their tattoos for easily covered areas of skin. “Whether it’s fair or not, putting a tattoo on your hand or neck is an immediate red flag to potential employers that you do not want a conventional job,” says Anthony M. Shallat, an associate with Angstman Johnson in Boise, Idaho. Unless, of course, you’re applying for a position at a tattoo parlor, your safest tactic while in job-seeking mode is to keep it covered.

Most states allow “at-will” employment, meaning an employee may be fired for any reason or no reason at all (though there is some variation from state to state). “The common example being if the boss does not like the color of an employee’s necktie, he can fire him,” says Robert S. Herbst, an attorney in Larchmont, New York. Having a tattoo does not put you in a protected class, and an at-will employee can be fired if the employer objects to their ink.

“Unless employees enter into specific agreements delineating the reasons for which they may be terminated, being terminated for revealing your tattoo at work is fair game,” says Ali Bushra, attorney with the Jafari Law Group in Aliso Viejo, CA.

If, however, there is a contractual agreement that an employee can only be fired for “just cause,” getting axed over an innocuous but conspicuous tattoo could be grounds for an employment lawsuit. The claim would be based on breach of contract rather than a claim of discrimination, harassment, or retaliation.

But keep in mind, too, that employers are permitted to maintain employee dress codes and grooming policies. “Under such policies, it is rational for professional reasons and brand image for an employer to prohibit employees from wearing visible tattoos,” says Beth P. Zoller, a lawyer and legal editor with XpertHR who specializes in employee handbooks, work rules, and employee conduct.

Religion might be your best defense

One thing employers are very much not allowed to do, however, is discriminate in the workplace. For example, an employer cannot fire someone for their religion. If you’re sporting a controversial or disliked tattoo, you could claim religious beliefs. “Tattooed employees may find some protection if they can prove that they either received the tattoo to express their religious beliefs or because they identify with a constitutional protected class, such as a specific race,” says Shallat.

Not part of any organized religion? The Church of Body Modification may welcome you. Tattooed employees can claim they would be violating their own religious beliefs by not showing a particular tattoo.

“No employer’s life is complete until he or she has a run-in with the Church of Body Modification,” says Michael Kelsheimer, employment attorney at Gray Reed & McGraw in Dallas. “This is a common dodge for employees.” Kelsheimer notes, however, that the beliefs of the interfaith church present a problem because congregants are not required to show their tattoos.

“While prejudice over tattoos is not a form of discrimination in and of itself, an employee does have a right to express his or her religion and culture through tattoos and body art under federal, state, and local discrimination laws,” says Zoller. “In such a situation, an employer may need to be willing to make a reasonable accommodation to its dress code and grooming policy to allow an employee to wear a tattoo.” If the employer makes this accommodation difficult, the employee could potentially bring a discrimination claim.

There are, of course, exceptions to every rule. While tattoos are a form of personal expression, if other employees feel offended or harassed by a coworker’s ink—offensive words, messages, images, or slogans directed at race, sexual orientation, gender, age, disability, religion or otherwise—the employer has the right to require the tattoo be covered. Refusal to conceal the offensive tattoo in the workplace could lead to dismissal.

The mainstreaming of tattoos

Another possible avenue for fighting job loss due to your ink is through the tattoo’s subject matter or content. Bushra gives the example of a tattoo that says “LGBTQ Unity” and the employer terminates the employee because of its content. “There would be a claim for discrimination based on the employee’s actual or perceived sexual orientation or an affiliation with members of the LGBTQ community,” he says. Thought to be clear, “termination because of the mere fact that the employee has a tattoo, content aside, does not qualify as discriminatory.”

Ultimately, tattoos are voluntary, and they are a personal decision. “Discriminating against someone for permanently marking their body is different than discriminating against someone for a trait given to them at birth,” says Shallat. “Having a tattoo or otherwise altering your appearance is not a protected right under the U.S. Constitution.”

So yes, there are risks, and if you find yourself getting in trouble, call a lawyer. But the scales are tipping more every day. A 2015 Harris poll found that 3 in 10 Americans have tattoos, and most don’t stop with one piece of inked body art. Given those numbers, it’s safe to say that at least some tattooed job seekers are likely to find some sympathetic hiring managers—at least some of whom may even be sporting their own body art.