"Discrimination" is a word that is often misused. People often think that if they have been singled out for any reason, they have been 'discriminated' against. This is not necessarily the case.
Legally speaking, discrimination only occurs when the treatment the person is complaining of is because of one of the 13 protected grounds of discrimination, set out in the Human Rights Act, and there is no good reason for the treatment.
These protected grounds include: sex, marital status, religious belief, ethical belief, colour, race, ethnicity, disability, age, political opinion, employment status, family status and sexual orientation.
Generally, employers have significant latitude to set guidelines on their employees' appearance. Workplace policies which provide specifications as to appropriate work attire, hair colour, facial hair and the visibility of tattoos or body piercings are legal and remain commonplace in many workplaces.
Whilst such guidelines may to some seem archaic and overly prescriptive, in many industries a conservative and professional standard of dress does remain the norm and the expectation, and as an employer, you have the right to determine how you wish to present your business in the best manner to attract and maintain customers.
So, would it be discriminatory to direct your employee to cover up a tattoo? To get to the bottom of this you need to first consider: the type of tattoo and whether it might be related to one of the grounds of discrimination; and if so, you then need to consider whether there was good reason to ask for the tattoo to be covered up.
The request to cover up a tattoo which has cultural significance by reason of the employee's religion or ethnicity could be discriminatory as these are prohibited grounds. For example asking an employee to cover up a culturally significant Maori tattoo such as a moko could be discriminatory. On the flip-side, a tattoo of a cartoon character or a flower would not be.
The Human Rights Review Tribunal considered a similar case, where a woman of Maori descent who had a moko on her forearm, was asked to wear a long sleeved shirt to cover it up whilst working at a corporate event. The Tribunal found that whilst the moko was of ethnic significance to the employee, the request was not discriminatory for the following reasons:
- There was no discriminatory intent behind the request
- The company had a rational business-related reason for the request
- The request to wear a long sleeved shirt was an effective way of dealing with the company's concern
- The employee did not make the employer aware she was unhappy with the request and therefore its need to consider alternative means for dealing with its concerns
- The request was only for one function so any discriminatory effect was limited
Of course as part of your wider duty as an employer, it is important that employees are treated fairly and are not unreasonably singled out. So in future to ensure all employees are clear about the company's expectations in relation to presentation for public appearances, especially if these differ from the day to day standards, it would be advisable to send out an email prior to the event outlining the dress expectations and the business reasons for them to avoid any complaints or concerns.
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.