On 22 January 2025, in an interview with Sean Hannity, President Donald Trump shared a controversial view not entirely unfamiliar in the South African political space. He said, 'There are people coming in with tattoos all over their face. Their entire face is covered in tattoos. .... Typically, you know, he's not gonna be the head of the local bank.' These comments came after a lengthy discussion about criminals from other countries flooding into the United States.
Trump's remarks about people with tattoos sound eerily similar to what the South African former Minister of Police, Hon. Bheki Cele said in 2022 when addressing police officers. Cele stated that police officers should not have tattoos and that the South African Police Service does (and should) not hire people with tattoos as they have a tendency to be gangsters.
This perspective seems to stem from a broader stereotype that associates visible tattoos with negative traits or criminality. In recent times, tattoos have become increasingly popular and accepted in mainstream society. However, the presence of tattoos in the workplace remains a contentious issue. Many employers still have rules regulating personal appearance, which, in some respects, may reflect personal biases or discriminatory views, such as those of Trump and Cele. Where this is the case, it can lead to significant legal risks under South African law. This is particularly so if employers make employment decisions, like hiring, promoting and disciplining, on the basis of personal appearances.
So, what is the risk?
South African law does not explicitly prohibit discrimination based on tattoos. The Constitution and the Employment Equity Act ("EEA") do not list personal appearance, including tattoos, as a protected characteristic. However, this does not mean that employers have free rein to discriminate against employees with tattoos.
While the EEA does not list personal appearance or tattoos, it does prohibit discrimination based on 'any other arbitrary ground'. The Courts understand 'arbitrary ground' to mean grounds that have the potential to harm an employee's fundamental human dignity. 'Discriminatory' rules may be allowed only if there is a rational reason behind the rule, and if the 'discrimination' is proportional to what it is trying to achieve. For example, where an airline requires air hostesses to be a certain weight or dress size – a rule such as this would only be permissible if the rule (physical size) is directly linked to the hostesses' ability to fit down the aisle. However, if the rule is merely that they must be the required physical size due to stereotypical views that being slim is appealing to the eye, the rule would amount to discrimination against those who are not the perfect size zero.
Our Courts have dealt with discrimination based on personal appearance in various contexts, including in the context dress code requirements in schools and in the workplace. In Department of Correctional Services v POPCRU, the Labour Appeal Court was required to determine whether the employer was discriminating against employees by requiring them to remove their dreadlocks. In this case, the employer espoused the view that there was a direct correlation between physical appearance (and the neatness of employees) and discipline. In finding the employer was acting in a discriminatory manner, the court stated that employer "produced no evidence that dreadlock wearing, Rastafarian or traditional healer correctional officers were less disciplined than their colleagues, or that they negatively affected their discipline." It was on this basis that the court found that there was no rational link between the rule and the reason for it. It is worth mentioning, as is evident from the above case, it can also be that the basis of the discrimination (being physical appearance) is indirectly linked to a listed ground, such as religion or culture.
Accordingly, where an employer is desirous to impose rules or make employment decisions linked to employees' physical appearances, they must tread carefully and be mindful also, of the unintended impact of other protected rights. In all respects, an employer must be able to prove that the rules regulating the personal appearance employees are linked to a requirement of the job. An employer who is unable to do so will be found wanting if the rule or their decisions are challenged. Having a tattoo is unlikely to impede any person's ability to do their job. However, in certain environments, there may be valid reasons for requiring employees to cover their tattoos. For instance, where there are tattoos that include profane or offensive wording or detail, this may negatively impact the image of the company if they are visible to the company's clientele. Concerns of this nature may justify the imposition of a rule for customer-facing employees to cover tattoos so that the employer can avoid the administrative burden of checking the acceptability of each and every tattoo.
Practical considerations for employers
To mitigate against the risk of discrimination, employers should consider the following when it comes to rules on physical appearance:
- Review dress code policies: Ensure that dress code and grooming policies are reasonable, non-discriminatory, and do not infringe on employees' constitutional rights.
- Focus on job performance: Evaluate employees based on their job performance and qualifications rather than their personal appearance.
- Provide training: Educate managers and HR personnel on the importance of leaving personal biases at the door and the risks associated with stereotyping.
In summary, while South African law does not explicitly protect employees from discrimination based on tattoos, employers must tread carefully. Judging employees based on their tattoos can lead to legal challenges and infringe on constitutional rights. By focusing on job performance and ensuring that workplace policies are fair and non-discriminatory, employers can create an inclusive environment that respects the rights of all employees.
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.
