McDonald Murholme employment lawyer Bianca Mazzarella comments on discrimination against employees with tattoos in the workplace.
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Tattoos in the workplace: the three types you can have
Australian employers can choose to discriminate against workers with tattoos unless the person’s body art meets some very specific criteria.
Ultimately, you would only be guaranteed of getting away with a tattoo in the workplace if it is linked to your race, religion or if the employer likes it.
Last week a budding flight attendant was turned down by both Qantas and Emirates because of a small tattoo of an anchor on her ankle.
Both airlines allegedly told the woman they would only offer her the job if the tattoo was removed, because they believed it could be deemed offensive by some cultures or religions.
Despite that, Qantas and Emirates both later clarified they had policies that stated tattoos were acceptable only if they could be covered up while work uniform was worn.
There was not much the woman could do, it seemed, according to federal law.
“Physical appearance is not a protected attribute under the Fair Work Act,” a Fair Work Ombudsman spokesperson told The New Daily.
The spokesperson said race, colour, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin were areas of discrimination covered under the Fair Work Act.
However there were some cases where an employee could challenge an employer who discriminated against them because of tattoos, a legal expert told The New Daily.
If it’s religious
If a tattoo depicts a symbol or an image that pertains to someone’s religion then it could possibly be argued not hiring an employee because of that tattoo was discriminatory.
McDonald Murholme, employment lawyer Bianca Mazzarella, told The New Daily that the Equal Opportunity Act in Victoria could be used to justify a religious tattoo.
“If it is linked to religion or a tribal tattoo then you would have a claim [if you were discriminated against because of the tattoo],” Ms Mazzarella said.
If it’s linked to race
The same applied to tattoos that were linked to someone’s race, Ms Mazzarella said.
But if it was not linked to race or religion then the employer could reject employment or direct it to be covered up.
“If the tattoo is not linked to race or religion then it is probably reasonable to not give someone the job because that may not be within their policy or standards,” she said.
“The only way to argue against it [being treated differently by an employer because of a tattoo] is claiming its discrimination of race or religion.”
Ms Mazzarella said that in her opinion, a “Southern Cross tattoo” possibly could be argued as a tattoo pertaining to race.
If your employer likes them
Some employers actively encourage workers to express their individuality, so tattoos are welcomed.
In late 2014, Starbucks decided it would let its employees show off their tattoos – although that was only if they were not offensive or on the neck or face.
KFC and McDonald’s told The New Daily their tattoo policies for workers.
Neither of them had a blanket ban on tattoos, but all had qualifications on what was allowed.
KFC told The New Daily that where possible, tattoos must be covered.
McDonald’s said that provided the tattoo was not offensive (nudity, foul language), then they did not need to be covered up.
Coles, Kmart and Nandos did not reply to similar requests from The New Daily.
Reference: ‘Tattoos in the workplace: the three types you can have’ The New Daily 2 August 2016