Roll up your sleeves and get to work! That is, unless you have a tattoo. While body art and tattoos in the workplace are becoming more acceptable, it’s a bit of a legal grey area. Here are answers to some of the most common questions about tattoos in the workplace.

Once only seen on those on the fringe, tattoos and body art are now a common form of self-expression. So much so, there’s a good chance even the most conservative looking CEO has one hidden somewhere. However, tattoos in the workplace are often a divisive topic. If your organisation frowns upon visible body art, navigating the related human resources policies can be a minefield.

Gold Coast woman Chontelle McGoldrick found this out the hard way. She was 18 when she had a small anchor the size of a 10-cents piece tattooed on her ankle, according to a News Limited report.

The tattoo was never cause for grief with her previous employers (an orthodontist’s office and a health food store) until she applied for a position as a flight attendant with Qantas and Emirates earlier this year.

“Both airlines said they wanted to offer me a position but they couldn’t, because of my tattoo,” says McGoldrick. “They said some cultures and religions find them offensive, so I was told to come back when it’s completely gone and there can’t be any scarring or marks.”

Qantas and Emirates confirmed their in-flight staff aren’t permitted visible tattoos.

It is certainly a scenario many in human resources are likely to come across. One in seven Australians are sporting a tattoo, according to a study conducted by the National Health and Medical Research Council. The study surveyed 8656 Australians between the ages of 16 to 64, with results showing that Aussie men are more likely to possess a tattoo than Aussie women. However, women in their 20s are more likely to have tattoos than men in the same age group.

Despite their growing popularity, many people in the community, particularly the older, more conservative cross-section, have a negative view of tattoos in the workplace. A study from recruitment firm Employment Office found 60 per cent of Australians surveyed believe visible tattoos in the workplace are unacceptable. Corporate workplaces and customer service roles are typically the least accepting of visible body art, while creative roles are more likely to welcome tattoos as a form of self-expression.

Are employers allowed to have a no-tattoo policy?

McGoldrick’s case raises an interesting question for human resources practitioners: Is an employer within their rights to deny employment to someone based on their body art?

The long and short of it is there is no national law stopping employers from banning tattoos in the workplace, or from dismissing a job applicant because of their tattoo.

“Physical appearance is not a protected attribute under the Fair Work Act,” a Fair Work Ombudsman spokeswoman told News Limited, responding to McGoldrick’s complaint.

Keep in mind though:

“It is illegal for an employer to discriminate against an employee or prospective employee on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

This means employers must ensure that any rules that affect people with tattoos are not simultaneously discriminatory.

For example, the Australian Human Rights Commission says an employer who refuses to hire a Maori applicant who has a tattoo for reasons connected to their ethnic origins could be guilty of racial discrimination.

The South Australian Equal Opportunity Commission says employers can specify that tattoos are not to be shown in the workplace “in most cases.”

“Tattoos are not specifically covered by equal opportunity laws. However, it is important to note that for some racial groups, tattoos may hold particular cultural significance,” the EOC’s website states.

Case Study: Dapto Leagues Club Ltd v Agius

Although not a tattoo, a NSW dispute over a lip ring that was taken to the Fair Work Commission (FWC) creates an interesting case study – and resulted in some even more interesting “musings” from the Commission’s Deputy President Peter Sams.

In 2014, the FWC was notified of a dispute by the Dapto Leagues Club in which club waitress Hope Agius declined to remove a lip piercing.

Agius had previously been entitled to wear the lip ring. However, as of October 2013, the club changed its dress code policy. While the amended policy no longer permitted Agius to wear the lip ring, she continued to wear it during work hours. An additional restriction was a ban on visible body art “on the face, neck, arms or legs on front-of-house staff.” 

The club stated that the reason for the policy was that “it does not fit the image that Dapto Leagues Club wishes to portray and has worked hard to develop over time. It may also be offensive to some people.”

Several informal discussions were held with Agius regarding the lip piercing, including a meeting with an organiser from the liquor and hospitality division of the United Voice union. The club then brought the matter before the FWC.

Deputy President Sams ruled that the FWC had no jurisdiction over the matter; in his written statement, he called the club’s decision to ban visible tattoos in the workplace an interesting – and confusing – choice.

“It strikes me as somewhat ironic that this strict approach is being adopted by a football club when one considers that probably the majority of professional footballers we see on our television every football season are covered in tattoos, including on their legs, arms, necks and even their faces,” he wrote.

Sams noted that although tattoos were rarely seen 40 years ago and almost never on women, times have changed.

“The dress and appearance norms of contemporary Australians, particularly young people, are very different to the community expectations of say, the 1960s or even the 1980s,” he wrote. “Given current standards, it seems to me to be somewhat unrealistic that [Agius] is being denied her right to self-expression when it was never an issue previously, and where her original contract of employment at least, impliedly, did not prevent her from doing so.”

He also noted the club’s decision could be construed as discriminatory, and that he “foresaw difficulties” if the club pursued disciplinary action.

“There must also be a hint of discrimination in that those who are now in breach of the policy because they have permanently exposed visible body art, will not be required to have them removed and will not be subject to any discipline,” he wrote.

How to tip-toe through the minefield

So, what is a human resources professional to do when their workplace frowns on visible tattoos?  

Garrett Kennedy, an associate at global law firm DLA Piper, has three tips:

1. Blanket bans on body art should be avoided. Limits on employees showing body art should be A) based on more than a general aversion to body art (a business plan to present a neat, clean and professional image in customer access jobs has been sufficient to date) and B) flexible with options to offer reasonable accommodations to employees with visible body art, such as allowing them to cover the art, rather than taking an adverse action.
2. Any policy regarding tattoos in the workplace should be consistently applied to avoid discrimination claims arising from disparate application.
3. Decision-makers need to be educated to be sensitive to body art’s significance not only to the wearer (as it might reflect a religious symbol or an ethnic symbol), but also to observant co-workers. Kennedy references a US case where an African-American employee offered evidence of a Confederate flag tattoo on a white co-worker as one piece of evidence in his attempt to identify a pattern of racial harassment.