Firefighter Tattoos and First Amendment Protection

BY JOHN K. MURPHY and BETH L. MURPHY

In today’s society, many people tend to misjudge tattoos or not understand the true psychology behind them. Many people who see someone with multiple tattoos will automatically think negative thoughts. For hundreds of years, tattoos have been a question from a psychological standpoint; many people have associated tattoos with criminals in the past. As we are finding out, many “noncriminals” and professionals have elaborate tattoos as well.

A tattoo can tell you a lot about the individual and his past. Although some tattoos may be a bit frightening, that individual may have gotten the tattoos in his past and has turned out to be nothing like that now. The psychologist performing initial psychological testing on your candidate firefighters may have a perception that tattoos are related to poorly performing employees and may make a no-hire recommendation for a qualified candidate.

LAW AND POLICY

At times, these two issues of law and policy are intertwined, so we look to the law then to policy for direction. In many states, tattoos are generally prohibited for those under the age of 18, and many tattoo artists need to be licensed by a public health agency, although the laws differ in every state. Those states that do regulate require sterilization capacity in the tattoo parlor and the ability to prevent infection spread among customers. Although a handful of states serve as models for regulations, most states are completely unregulated except for some laws on the minimum allowable age. There is no federal legislation regarding tattooing. To complicate things even further, many states leave these regulations up to the cities, counties, and municipalities; changes to existing laws crop up regularly.

In a 2008 Fire Engineering Roundtable column, Technical Editor Skip Coleman asked this question:

“Recently, there have been several news stories of fire departments that have required their members to cover all tattoos with uniform clothing, even if the tattoos are not offensive. Should a fire department have the right to require members to cover tattoos while on duty?”

Most, if not all, who responded indicated that tattoos are covered (no pun intended) by policy and that some departments accept them. A chief with the Fire Department of New York indicated: “Tattoos are like other forms of fashion. They are currently in style but will probably be out 10 years from now. I am not a big fan of tattoos; however, the majority of tattoos I see on our firefighters are artistic expressions or symbols of individuality, pride in their job, military service, or 9/11 sentiments.”

Another firefighter in Ohio opined even though tattoos have gained wide acceptance and are no longer relegated just to “military types” or “bikers,” they have negative connotations for many of the people we serve. He said, “It doesn’t matter how well we do our job; if the public feels they cannot trust us or if our self-expression comes off as offensive, we are of no use to them.”

Faced with this challenge, union officials and fire administrators need to communicate, especially when it relates to regulating tattoos on firefighters; it may even necessitate a case-by-case evaluation of each member and maybe some reasonable accommodations. Whether we like it or not, the citizens, the city, and the department have a right to dictate acceptable standards. If the policies squash self-expression, we have to ask ourselves which is more important, self-expression or our livelihood? There is a general question here about how tattoos may be viewed by employers. There appears to be a tolerance for covered tattoos in most fire departments, but departments continue to struggle with the question of regulating piercings, tattoos, and extreme hair styles.

Is wearing a tattoo or piercing lending itself to a professional appearance? According to Dr. Joseph Carver, Ph.D., the reality of wearing a tattoo is like wearing a Rorschach on your wrist. He suggests that those viewing it interpret the tattoo through their own backgrounds and prejudices. Folks will make judgments about a person based on the tattoo, often overriding professional credentials; the tattoos become a statement about the person’s credibility and personal judgment.1

Consistency and respect for diversity are keys to a successful policy. Fire departments can limit employees’ personal expression on the job as long as they do not impinge on their civil liberties. According to the Equal Employment Opportunity Commission (EEOC), employers are allowed to impose dress codes and appearance policies as long as they do not discriminate or hinder a person’s race, color, religion, age, national origin, or gender.

Human resources experts will recommend that a fire department’s dress code be based on legitimate business reasons and be applied consistently. Consistent application of a policy is the issue behind a lawsuit that arose after Ameritech Corp. asked three of its telephone line technicians to lose the jewelry or lose the job. Ameritech Corp. claimed that facial jewelry could be a potential safety hazard. The employees fought the “safety-based” policy and were subsequently suspended without pay. The Occupational Safety and Health Administration said people working near electric lines, including telephone workers, should refrain from wearing all types of jewelry. Unfortunately, Ameritech’s current policy only attacks nontraditional facial piercings and not ear piercings or other jewelry.

Body art policy can be tied to a dress code. Although there are varying opinions on how to create a solid dress code, most recognize that policies can differ across industries and corporate cultures. “There are extremes,” said Duncan Browne, senior vice president of Newbury Comics, a Boston, Massachusetts-based chain of music and comic retailers. “I don’t think many employees of banks display body art, but at a place like Newbury Comics, let your freak flag fly!” Policies are just as unique as the body art they regulate. “It depends on the company’s mission, goals, and desired outcomes in terms of identifying what’s in the best interest of the corporation. You may want to tie your policy to a general dress code policy—that way it provides a context.”

Companies should have a policy in place before conflict arises. “In employee manuals, we have a section about employee personal appearance where it says ‘no excessive piercing and tattooing,’ ” said Browne. “We wanted to make sure we have the option based on management discretion so that if somebody is found to be excessive, we can do something about it.” Even though body art is prevalent among Newbury Comics employees, the company has yet to dismiss an employee due to the policy.2

Can freedom of expression be good for the fire service? The justification for many fire department policies about appearance is the impact on the public and elected officials. Hiring a firefighter is ultimately about qualifications, but the employer does have rights as it creates policies limiting certain freedoms. We have to maintain an awareness of the public image that we provide to the citizens we serve. If the public has a problem with certain modes of dress or ornamentation, the fire departments need to be sensitive to those issues.

The most progressive fire departments keep an eye on how the general culture changes and, in turn, revise their policies and practices to keep pace. Moreover, taking a candidate out of the running for a firefighter’s position because of body art isn’t always practical. Your hiring interest should be more focused on the candidate’s ability to do the job and how that candidate contributes to furthering the department’s goals and objectives.

FIRST AMENDMENT FREEDOM OF EXPRESSION AND TATTOO LAWS

According to the EEOC, employers are allowed to impose dress codes and appearance policies as long as they do not discriminate or hinder a person’s race, color, religion, age, national origin, or gender. Fire departments have a right to ban employees with tattoos and can limit employees’ personal expression on the job as long as they do not impinge on their civil liberties.

There is a strong legal basis for discriminating against the tattooed, especially if the employers fear that having tattooed employees might affect the professional image of the fire department. In a 1976 court case,3 the Connecticut Supreme Court established the standard for reviewing dress codes under the Connecticut Fair Employment Practices Act. In Pik-Wik, an employee complained about a grooming standard that required men to “wear their hair off the collar and above the ears.” The employee argued that the policy discriminated against him on the basis of gender because women were not subject to the same standard. The court rejected the argument, concluding that the grooming standard was nondiscriminatory because it did not deny equal employment opportunities on the basis of an immutable characteristic—e.g., sex, race, national origin, disability, or religion.

In another 2006 Hartford, Connecticut, case, it was ruled that police officers with offensive tattoos can be ordered not to display them, disappointing five officers who claimed the ban violates their First Amendment rights. “A police department has a reasonable interest in not offending or appearing unprofessional before the public it serves,” the 2nd U.S. Circuit Court of Appeals said.

The three-judge panel said a lower court judge was right to dismiss the lawsuit brought by five police officers against the city and its former police chief. The plaintiffs had argued that a city order giving the police chief the authority to ban offensive tattoos was unconstitutional because it violated their First Amendment rights.

The 2nd Circuit Court noted in Inturri v. City of Hartford 4 that the order affects only tattoos displayed by on-duty police officers. It said the First Amendment rights of public employees are significantly more limited than those of the general public. The Court upheld the police chief’s order that they cover their spider-web tattoos while on duty. Because no fundamental liberty was implicated, the order only needed to have a rational basis. In this case, the chief’s concern that the tattoos could reasonably be perceived as racist was sufficient to justify the order against the officers’ First Amendment protections and equal protection claims. However, regardless of the legalities and rights of people to look the way they choose, many states have employment “at will” statutes. These statutes allow you to quit at any time, for any reason, and will allow fire departments to fire employees at any time for any reason or no reason at all.

The Los Angeles (CA) Fire Department (LAFD) has adopted a policy that prohibits firefighters from displaying tattoos while they are on duty.⁵ Firefighters with exposed tattoos on their arms are required to wear long-sleeve shirts; those with neck tattoos are required to cover the area with bandages. Reports suggest that approximately 200 firefighters who cannot cover their tattoos with the standard uniform have been affected. The fire department states that the policy was adopted to improve the department’s level of professionalism and its public image. Some tattoos can also be misconstrued as being gang affiliated. The policy was prompted, in part, by a progression of tattoo size and quantity, which now includes firefighters with tattoos covering their heads and necks.5-6

Following the policy’s adoption, officers were warned that they would enforce the regulation or risk punitive action themselves. This action resulted in firefighters’ filing numerous complaints. Opponents have argued that the policy is unconstitutional and a form of discrimination. Most commentators have suggested that the policy should apply only to new tattoos and that firefighters with existing tattoos should be grandfathered. Although the LAFD policy may appear unfair, is it illegal?

Little Support in Law

There are few fire service legal cases on point, but there are several workplace tattoo court decisions that can provide guidance to fire service leaders. Fire department employees who want visible tattoos will find little support in a court of law. Case law demonstrates that public employers may discriminate against individuals who wear tattoos as long as the basis of the discrimination is rationally related to a legitimate governmental interest.

Courts support a government employer’s maintaining a uniform safety service force and a desire to eliminate potential race- or gang-related issues as sufficient reasons to require an employee to cover his tattoos. Although general across-the-board rules and regulations limiting tattoos will be easier to uphold, courts will also support restrictions on an individual employee’s right to display a tattoo where the rules and regulations permit the employee to do so were adopted. For that reason, fire departments should enforce a tattoo policy before an individual employee must be singled out and before offensive (racist, sexist, or otherwise discriminatory) tattoos begin generating complaints.

WHERE DO WE GO FROM HERE?

Well, as we are all about policy in the fire service, it would be a prudent move to incorporate some policy regarding tattoos, body piercings, scarification, and other forms of body art before it becomes a problem. There are hundreds and thousands of tattoos adorning our firefighters. Many of them are in memoriam to our lost brothers and sisters, some are tribal, some are left over from the military, and some were acquired on a dare from other firefighters. Wherever those tattoos have originated, they have become a part of our fire service society.

Do we need to regulate them? We believe that we are in a highly visible profession and we need to have a professional appearance that includes hair, facial hair, uniforms, and the like. Should we regulate tattoos, piercings, and scarification? There is no clear answer.

As body art becomes easier and safer to apply, the percentage of firefighters reporting to work with body art increases. However, most fire departments do not have a policy in place, since only recently have tattooing and piercing become more mainstream. Fire departments need to look at how they are going to address this issue in the future as our firefighters are bridging the generation gap between Baby Boomer management and Gen X-ers.

A good example of a short and concise policy is from the Phoenix (AZ) Fire Department (Volume 1) Operations Manual:

Let’s get ahead of the curve on this issue. This policy example is the basis of a proactive relationship between management and firefighters. We are sure that Phoenix Fire or any other fire department will be happy to share its successful policies related to tattoos, piercings, and other forms of body art.

Endnotes

1. Dr Joseph M Carver, PhD, clinical psychologist, 29 May 2007.

2. “Body Art in the Workplace,” Regina M. Robo, salary.com 2000.

3. Pik-Kwik Stores, Inc. v. Commission on Human Rights and Opportunities, 170 Conn. 327, 365 A.2d 1210 (Conn. 1976).

4. Inturri v. City of Hartford, 2006 WL 231671 (2d Cir., Jan. 31, 2006).

5. Pelisek, Christine, “Los Angeles Fire Fighters Fume Over ‘No Show’ Tattoo Policy,” Los Angeles Weekly, June 12, 2008.

6. “The Ban on Body Ink,” David C. Comstock Jr., Fire Engineering, Nov. 1, 2009.

JOHN K. MURPHY, JD, MS, PA-C, EFO, has been a member of the career fire service since 1974, beginning his career as a firefighter and paramedic. He retired in 2007 as a deputy chief and chief training officer. He has been a licensed attorney in Washington State since 2002 and in New York since 2011. He consults with fire departments and other public and private entities on operational risk management, response litigation, liability, and other areas affecting the fire service. He is a frequent legal contributor to Fire Engineering, a participant in Fire Service Court Blog Radio, and a national speaker on fire service legal issues.

BETH L. MURPHY, PsyD, retired as a firefighter and completed her doctorate in clinical psychology. She is a practicing clinician with a focus on workplace stress, PTSD, cancer survivors, and TBI. She retired as a firefighter/EMT and a member of the department’s hazardous materials response unit and Peer Support Team. She is a contributing author to Fire Engineering.