Freedom for Tattoos?

Tattoos and Piercings: Issues of Body Modification and the Workplace, was researched and written by Donna Peeples and Brian Elzweig in the winter of 2011, published by the Society for the Advancement of Management.

Summary

This article focuses largely on legal issues of tattoos as well as litigation involving employers to which the authors claim have been relatively successful.  They also present suggestions for employers to help them “navigate the tricky waters of this social trend” (Elzweig & Peeples, 2011).  The authors state that tattoos have become extremely ever-present over the years, so much so that tattoo and piercing shops are surfacing in shopping malls.  They cite a 2007 study, where 66% of the youngest cohort had a tattoo or were considering getting one.  They also note the attitudes toward tattoos among those who are not tattooed, finding that the non-tattooed feel those who have them are more rebellious and more likely to engage in deviant behaviour (drinking, drugs, etc).  Tattoos are seen as “mutable” (changeable) characteristics and as such are not entitled to receive any special legal protection - so basically if a company has a policy that bans or limits the appearance of tattoos, it will most likely be upheld by the court.  In addition, courts have consistently rejected public employees’ constitutional claims (mostly those arguing provisions of freedom of speech and expression), holding that tattoos are not protected speech nor are they a legitimate form of expression.  Some employees alleged they were fired because of a tattoo or body piercing, but unless they could make a prima facie case of religious discrimination (which is a constitutional right) they essentially had no case, and therefore no chance of making a justifiable claim.  The authors then provide numerous case examples of employee’s failed attempts in arguing tattoos being a crucial part of their religion or physical appearance and the success of the employers’ discriminatory policies involving tattoos.  In closing, they suggest employers change their policies and hiring practices, as the number of people with tattoos (people who are the future generations of potential employers) exponentially grow and society evolves.

Opinion

For the sake and purposes of my background in law, I am mostly interested in the legal aspects of tattoos in this article, and this is what I will be basing my opinion off of.

It was very unnerving to read that the courts continually uphold the employer policies of body modification, as I do feel that tattoos are an expression of oneself. The article states that discrimination in employment based on tattoos and piercings is not illegal unless we are a “member” of a protected class (for example, a religious group)… I say we because I have tattoos myself, and these tattoos have significant meaning to me.  I feel that my tattoos express who I am, and I definitely feel that I should not be denied a job or anything else because of a fundamental right I believe I (should) possess.  The authors in the article state tattoos are a “social trend”, they are seen by others to be rebellious, and have been found to be in direct correlation with extended jail time and recreational drug use, to name a few.  These can potentially be seen as negative factors that have stigmatized not just the tattoos, but the people who wear them and their potential not just as employees, but their potential in life.

'Daddy I love you' tattoo
Retrieved from reddit.com

I feel I have to tell this story because it fits perfectly here. A couple months ago I was in Sephora and saw one of the makeup artists applying foundation to a young man (which we all know is crazy…since when do guys even step foot in a makeup store?).  My curiosity killed me, so I went up to him and asked why he was using foundation.  He told me he had a tattoo on his face, which I couldn’t see as the foundation covered it quite successfully, and was due in court the following day to try and win full custody of his son.  I asked why he was spending so much time covering the tattoo up (by that point it was the 7th layer of foundation) and he replied “the court would never take me seriously as a father with ink on my face.” I found this to be extremely disappointing.  How are we to feel safe with the justice system (or any system for that matter) if we can’t even express ourselves in this way?  To an extent we must look professional and “the part” in important situations like this…I understand society’s standard, but this is someone’s son, or job, or life and the court will not protect our expression as a constitutional right.  If this is the way our society is going to react NOW towards body art, I wish it luck with the future generations who will be completely covered head to toe in drawings.

So I guess I do not really disagree with what the article says, I more so disagree with what the law says (or what it doesn't say) about tattoos and expression.

Citation

Elzweig, B., & Peeples, D. K. (2011). Tattoos and Piercings: Issues of Body Modification and the Workplace. S.A.M. Advanced Management Journal. 76(1), 13-23.  Retrieved from http://search.proquest.com/docview/871452761/fulltextPDF/142F91A0DD276A22181/2?accountid=3455

Questions

Do you think tattoos should be considered under the fundamental law of freedom of speech and expression?

What factors (other than “they are alterable” mentioned in the article) could be used as an argument to say tattoos should not be considered?