Australia: Can an employer ban tattoos in the workplace?

Last Updated: 15 December 2012
Article by Richard Ottley and Laura Sowden

IN BRIEF

The visible tattoos that individuals adorn their bodies with can become the subject of discussion in the workplace. There is a diversity of opinion as to whether tattoos are a positive, negative or neutral presence in the workplace. This article discusses whether an employer can prevent tattoos in the workplace.

Tattooing has a lengthy and interesting cultural history and has a wide variety of tattooing practices with different origins, across different cultures and with different objectives.

The visible tattoos that individuals adorn their bodies with can become the subject of discussion in the workplace. There is a diversity of opinion as to whether tattoos are a positive, negative or neutral presence in the workplace. Opinion is often informed by the type and location of the workplace, the customers who frequent the workplace, and the individuals that work there.

An employer's approach will therefore often depend on what kind of business they are in and sometimes their personal preferences. More traditional or conservative workplaces may for example adopt a different attitude to tattoos to a workplace with a more creative environment.

CAN AN EMPLOYER PREVENT TATTOOS IN THE WORKPLACE?

In New South Wales under the Anti-Discrimination Act (NSW), discrimination on the grounds of race is unlawful. If it could be said that the wearing of a tattoo is common to a particular race (for example it is part of their culture), there may be room for arguing that requiring a person of that race to comply with a condition (such as covering up tattoos) is discriminatory, on the basis that the condition or requirement is one which a substantially higher proportion of people not of that race, comply or are able to comply. There is an exception where it is not discrimination if the requirement is found to be reasonable.

If the wearing of Tattoos is an expression of a person's race, colour, nationality or ethnic origin then any requirement which has the effect of nullifying or impairing that freedom of expression, such as a requirement to keep tattoos covered up, may constitute a breach of the Racial Discrimination Act 1975 (Cth) unless the requirement was reasonable having regard to the circumstances of the case. Each case would need to be looked at on its own merits and further judicial guidance in this field would be of assistance. Nevertheless, it seems that an employer would need to be able to demonstrate that there were compelling business reasons which supported the action taken. It is advisable that before an employer sought to take any action restricting an employee's wearing of tattoos or enforcing a policy in this regard, that they first understand the employee's reason for wearing tattoos.

The Fair Work Act 2009 (Cth) protects against discrimination based, amongst other things, on religion, political opinion, national extraction or social origin. However these provisions do not apply for example where: the action taken is not unlawful under any antidiscrimination law in force at the place where the action is taken, or where the action is taken because of the "inherent requirements" of the position. These provisions are therefore clearly an adjunct to antidiscrimination provisions already in force. Anomalies may therefore exist regarding access to this jurisdiction depending upon individual state based legislation. A lot may turn on whether it was reasonable to have as an inherent requirement of the position, a requirement that a person complies with a particular employer policy on tattoos.

In Victoria the Equal Opportunity Act 2010 (Vic) prevents discrimination on the basis of "physical features". If for example, an employer does not employ someone or terminates their employment because of their physical features, then this may constitute discrimination subject to the following relevant exceptions:

  • If the position is for a dramatic or an artistic performance, photographic or modelling work or any similar employment
  • In domestic employment in the employers home
  • Discrimination against a person on the basis of their physical features may be permitted if it is reasonably necessary to protect the health, safety or property of any person (including the person discriminated against)

In Victoria tattoos may have been considered to constitute a physical feature (Jamieson v Benalla Golf Club Inc (2000) VCAT 1849 (30 September 2000). Although such a finding was not necessary for the decision and therefore probably not binding, it is likely to be relied upon in future decisions in this area. On this basis, individuals in Victoria may enjoy specific protection from discrimination on account of their tattoos.

INTERNATIONAL APPROACHES TO TATTOOS IN THE WORKPLACE

Recently in New Zealand the actions of a company in requiring a Maori employee to cover her moko (tattoo) were held not to be discriminatory (Haupini v SRCC Holdings Ltd [2011] NZHRRT 20). However in this case the employee brought a claim on the grounds of race, and the Human Rights Review Tribunal held there was no discrimination on the basis of race, as fellow Maori employees were not asked to cover their tattoos with long sleeved shirts and in her case the request was directed to a particular client function. The Tribunal outlined the following factors which established that the employee had not been subject to discrimination when asked to cover the tattoo:

  • There was no discriminatory intent
  • There was a reasonable business-related reason for the request
  • Asking the employee to cover the tattoo with a long sleeved shirt was a good option
  • The employee did not inform her employer she did not want to cover the tattoo. If she had the employer may have retracted the request
  • The coverage of the tattoo was for a very limited time

The Tribunal did note that if the claim had been based on culture it may have been successful.

In California, tattoos and the process of tattooing has been recognised as protected by the first amendment right of free speech on account of tattooing constituting speech. In Anderson v City of Hermosa Beach 621 F.3d 1051(9th Cir.2010) the Californian Federal Court determined that Hermosa Beach's ban on tattoo parlours was unconstitutional on the basis that the restriction was not a reasonable time, place or manner restriction.

However, employees in USA who claim discrimination based on their tattoos have only been successful where the tattoo contains political speech, religious expression or the treatment of the employee involves some other discriminatory element. For instance, preventing female employees from displaying tattoos but allowing male employees to display them would be discriminatory.

CONCLUSION

There is little judicial guidance on the relationship and application of laws on discrimination to the wearing of tattoos in the workplace.

If a tattoo is a feature of someone's religion, political opinion or ethnic or social origin then it may be unlawful for an employer to take action which may be capable of being characterised as discriminatory based on the wearing of their tattoo.

If the appearance of tattoos is undesirable in a particular workplace due to the nature of the employer's business and/or dress and appearance standards, it is open to employers to develop or expand existing policies in this area. It may be that in a policy, a distinction will be drawn between types of tattoos which will be regarded as acceptable and those which will be regarded as unacceptable. There may be a "cover up" policy with respect to tattoos generally or only certain types of tattoos or certain locations for tattoos.

In any policy it is strongly recommended to address the issue of tattoos whose origin is based on race, religion, politics or ethnicity and consider having culturally appropriate exceptions. If an employer has a complete prohibition on the exposing of tattoos then it will need a cogent and reasonable business case underpinning it.

For further information please contact:

Richard Ottley, Partner
Phone: + 61 2 9233 5544
Email: rbo@swaab.com.au

Laura Sowden, Solicitor
Phone: + 61 2 9233 5544
Email: lms@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions