I was fired or denied employment because of my visible tattoos. Do I have any legal protections against discrimination?
Most likely, no. There are no legal protections from employment discrimination based on an employee’s visible tattoos. Both California state and federal employment discrimination laws specify certain “protected classes” such as gender, religion, race, and sexual orientation. Neither California nor federal law, however, protect against discrimination based on an applicant’s visible tattoos. Therefore, employers can legally deny you employment based on your tattoos.
HOWEVER, there have been cases of people bringing employment discrimination claims involving tattoos, when they are protected by one of the specified classes. For example, courts have found protections for religious tattoos, as “religion” is a protected class. Plaintiffs have also been successful bringing claims based on gender discrimination, when employers take adverse action against men with tattoos, but not women.
A Summary of Your Rights
- An employer CANNOT discriminate against you based on your race, color, religion, sex, national origin, or any other protected characteristic.An employer CANNOT weigh your criminal history more heavily than another applicant’s similar criminal history because of your race, color, religion, sex, national origin, or any other protected characteristic.An employer CANNOT deny employment to everyone with a criminal history.An employer, however, CAN justify a hiring policy against people with criminal histories if it shows the policy is “job related” and “consistent with business necessity.” An employer SHOULD evaluate your individual circumstances and consider: Facts and circumstances surrounding your offense;The number of convictions in your history;Your age at the time of conviction / release;If you have held the same type of job, post-conviction, without incidents;Your employment history before and after conviction;Your rehabilitation efforts;Employment or character references; andWhether you are bonded.An employer SHOULD give you notice that you were denied employment because of your criminal history, and give you a chance to show that it should make an exception for you based on your individual circumstances.
See EEOC v. Red Robin Gourmet Burgers, Inc. (W.D. Wash. Aug 29, 2005) ↑
See Hub Folding Box Co. v. Mass. Comm’n Against Discrim., 52 Mass. App. Ct. 1104 (2001). ↑
Hiring policies excluding people based on criminal history must consider at least three factors in order to be “job related” and “consistent with business necessity:” (1) the nature and gravity of the offense; (2) how much time has passed; and (3) the nature of the job sought. Green v. Missouri Pac. R.R., 549 F.2d 1158 (8th Cir. 1977). ↑
42 U.S.C. § 2000e et seq; see also EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 No. 915.002) (Apr. 25, 2012) (herein EEOC Enforcement Guidance). ↑