Allegations of discrimination strike fear into the hearts of every HR professional so asking an employee to cover up a cultural tattoo can be a daunting prospect – but is it legally allowed?
“Generally, employers have significant latitude to set guidelines on their employees' appearance,” says leading employment lawyer Brian Nathan.
From uniform and work attire to hair colour or body piercings, company policies dictating their appropriateness are legal and remain commonplace in many workplaces.
“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,” stresses Nathan.
So what about tattoos? Well, according to the Nelson-based lawyer, this is where the waters becoming somewhat murky.
“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,” says leading employment lawyer Brian Nathan.
The thirteen protected grounds are: gender, marital status, religious belief, ethical belief, colour, race, ethnicity, disability, age, political opinion, employment status, family status and sexual orientation.
“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,” warns Nathan.
“For example, asking an employee to cover up a culturally significant Maori tattoo such as a moko could be discriminatory,” he explains. “On the flip-side, a tattoo of a cartoon character or a flower would not be.”
While there’s potential for discrimination, not every case is cut-and-dry and a recent Human Rights Review Tribunal proved that employers do have some discretion.
The case centred on a woman of Maori descent who was asked to wear a long sleeved shirt to cover the moko on her forearm while working at a corporate event.
The tribunal acknowledged that the moko was indeed of ethnic significance to the employee but found that the employer’s request was not discriminatory. Here’s why:
- There was no discriminatory intent from the employer
- 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
While the tribunal sided with the employer in this instance, Nathan says HR managers should remain vigilant when it comes to possible discrimination.
“As part of your wider duty as an employer, it is important that employees are treated fairly and are not unreasonably singled out,” he says.
“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,” he advises.
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