Tattoos in the workplace: what we feel versus what the law allows

According to recent studies, one in five Australians have at least one tattoo. Tattoos are more ubiquitous than ever, and they’re intersecting with expectations within modern workplaces. 

Tattoos represent a legitimate form of art for many people or are tied to an individual’s ethnic or religious background. Despite wider social acceptance, visible tattoos in the workplace are often regarded as taboo. Changes in societal values, norms and the demands of the current workforce marketplace have made it necessary for employers to accommodate for safe workplaces which welcome diversity. 

Regardless of your views on body art, when drafting a workplace dress code policy, it’s important that businesses are acutely aware of discrimination laws that may prevent a business from directing employees to cover up their tats! 

We’re sure you have many questions on this topic so to help you, in this article, we’ve answered some. 

Does your dress code discriminate? 

It’s common for many businesses across all industries to have workplace dress code rules regarding the dress and appearance of employees. While employers are entitled to have these policies, the law requires policies to be reasonable and not discriminative against an employee. 

The Australian Human Rights Commission (AHRC) notes that employees who come from cultures in which tattoos are highly common, highly visible and highly connected to the person’s identity, may be inadvertently discriminated against. Where an employer has implemented a policy that, in-effect, prevents the hiring of any workers with visible tattoos, it could be discrimination, the AHRC says. It’s even more likely that discrimination is occurring when the policy applies to roles with no customer contact. As the AHRC says “Employers will sometimes set rules regarding the appearance of their employees in the workplace. However, it’s important to ensure that any proposed rules that affect people with tattoos do not amount to discrimination. 

The AHRC cites the following example: An employer had a policy to refuse to hire any workers with visible tattoos, even for roles that involved no customer contact. A Māori job applicant who had a tattoo for reasons connected to his ethnic origin was not hired because of his tattoo. According to the AHRC, this could be racial discrimination. 

Each state and territory have legislation that regulates discrimination. In Victoria, pursuant to the Equal Opportunity Act 2010, the risk to employers in banning tattoos goes beyond the potential claim of racial discrimination but may amount to actual discrimination since ‘physical features’ is a protected attribute in Victoria. While no case has defined whether tattoos amount to physical features, it’s likely that they do and so employers in Victoria are required to be extra careful when implementing dress code policies. 

What does this mean for you as an employer? 

With the increased acceptance of tattoos in all facets of life, it may be time to review your dress code or uniform policy in order to minimise your risk and ensure your policy is compliant. 

HR policies are a simple way to ensure your business is well-equipped to handle common workplace issues. Inside of Citation HR’s Software you can create new policies or update existing ones. Better yet, Citation HR’s Workplace Relations Specialists will draft tailored HR Policies to suit your unique business needs. Contact us today to see how Citation HR can help your business.