Tattoos in the workplace: attitudes vs the law

According to recent studies, 43% of Australian’s have at least one tattoo. 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. The current global marketplace, however, has made it necessary for employers to provide a workplace that welcomes employees from many different backgrounds.

Does your dress code discriminate?

It’s common for many businesses, across all industries, to have rules regarding the dress and appearance of employees. While employers are entitled to have these policies, it’s important to make sure the policy is reasonable and doesn’t amount to discrimination against an employee. To be fit for purpose, the policy should reflect not only the industry in which the business operates, but the type of work the employee will perform.

The issue of workplace discrimination in this context was highlighted by an Australian Human Rights Commission (AHRC) case, where an employer had implemented a policy that, in-effect, prevented the hiring of any workers with visible tattoos. The policy applied even for roles with no customer contact. The policy resulted in discrimination against a Maori applicant who was denied employment due to a tattoo connected to his ethnic origin.

As outlined by the AHRC, an employer can be accused of discrimination under the Anti-Discrimination Act 1977 (NSW) if potential or current employees are either refused employment because of, or required to cover up, tattoos that relate to their race, ethnic origin or nationality.

Each State and Territory has legislation that regulates discrimination. In Victoria, the risk to employers goes beyond racial discrimination, with employees also protected from discrimination due to their ‘physical features.’ While the legislation hasn’t been tested as to whether tattoos constitute a ‘physical feature’, businesses whose policies include strict ‘no tattoo’ provisions and fail to be fit for purpose are at high risk of a claim.

What does this mean for you?

With the increased popularity of tattoos, it may be time to review your dress code or uniform policy in order to minimize your risk. While policies are important for maintaining minimum expectations within a workforce, if the policy isn’t checked for discrimination and consistently enforced it may not protect your business.

For more information on dress code policies or tattoos in the workplace, contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client, contact us on today for an informal chat.