Is Body Art Free Speech?
December 5, 2019
Tattoos, piercings, and other forms of body art have a long history. There is firsthand physical evidence of tattoos on a 5,200-year-old frozen corpse, and second-hand archeological evidence that the Egyptians wore tattoos as early as circa 4000 B.C. There have been body art exhibitions at renowned institutions like the May 2000 exhibition at the American Museum of Natural History in New York Body Art: Marks of Identity. Today, many think of body art as a form of self-expression if not defiance. However, body art is not protected speech.
In “employment at will” states, employees can be demoted, transferred, or fired for no reason. The only limits come from anti-discrimination laws, meaning employees can be penalized for displaying body art unless the penalty discriminates against a protected group (e.g., race, color, ethnicity, sex, sexual orientation, or religion).
If body art derives from religious beliefs or practices, the law prohibits an employer from banning such art at work, provided the employee demonstrates “sincerely held” religious beliefs. If sincerely held religious beliefs trump a body art ban, and the burden shifts to the employer to make reasonable accommodations if s/he can do so without an undue burden – for example, by providing a uniform the covers questionable marks.
Bottom line: unless an employee can demonstrate that an employer’s ban on body art impacts a protected group to which s/he belongs, the employee has very limited protection for artistic self-expression.
Sources: LEGAL MATTERS: Can Your Tattoo Get You Fired? www.golocalworcester.com