Testimony: “Tattoos” a Protected Characteristic?

Today the NYC Hospitality Alliance submitted testimony at an NYC Council opposing a bill,  Int. 702 which would make “tattoos” a protected characteristic under the City Human Rights Law (“HRL”) for three reasons. 

First, adding tattoos to the list of protective characteristics covered by the HRL trivializes the importance of the HRL as a vital tool against discrimination in the workplace. With few exceptions, the list of protected characteristics currently covered by the HRL are immutable traits that individuals cannot change. A person cannot change their race, color, national origin, sexual orientation, or age, among other characteristics. It is because that these traits cannot be changed or altered – they are immutable – that as a society, New York City has enshrined their protection in law. Sadly, there is a long history of discrimination against individuals because of such immutable characteristics as race, gender, and color—characteristics that mark an individual from birth and cannot be controlled. Similarly, there are other protected characteristics that individuals possess through no fault of their own such as their citizenship, disability, or victim of domestic violence that also require special protection because of long-standing prejudice and disadvantages associated with such characteristics.    

Having a tattoo is very different than being a member of a religious minority, immigrating from another country, or being disabled. Individuals choose to have a tattoo, the other HRL protected characteristics are not, for the most part, the product of an individual’s choice. (To the extent an individual does not have a tattoo by “choice,” whether because they are a victim of sex and/or labor trafficking or tattooing is part of their religions or ethnic culture, the HRL already protects such characteristics.)  Moreover, not only do individuals elect to have tattoos, they elect what kind of tattoo they want to have, where to place it, and sometimes following buyer’s remorse, chose to remove them. Thus, whether to have a tattoo, where it is placed, and what the tattoo consists of is entirely within the power of the individual. As such, it is not immutable like race, religion, national origin, gender, or sexual orientation. There is no long-standing discrimination against individual with tattoos. In fact, adding tattoos to the categories of protected characteristics seriously waters down all protected characteristics as it seems the City awards protections based what is hip and trendy today rather than on immutable characteristics that deserve added protection. Individuals with immutable characteristics have a long history of suffering from discriminatory conduct for characteristics that are not in their control and that do not affect their work. The same cannot be said of those that elect to have tattoos.

Second, adding tattoos to the list of protected characteristics will be burdensome to industries such as hospitality, even more so as they’re still trying to recover from the COVID-19 pandemic. While the proposed law does permit employers to “ask” employees to cover up tattoos, there are some tattoos that cannot be covered up. For example, it might not be possible to cover-up tattoos on an individuals’ face, neck, or hands. Sometimes, such tattoos can be vulgar, offensive, or discriminatory as a recent news article I got a vagina tattoo inked on my face. Indeed, under the proposed new law, businesses would violate the law if they refused to hire (or fired) a worker because the worker had a swastika, the Confederate flag, the “N” word in large font, or female genitalia tattooed on their face, which could not by all practicality be covered up. Such tattoos would, by definition, create the potential for a hostile work environment giving employers a Hobbesian choice – either face a lawsuit for allowing a hostile work environment to continue or face a lawsuit for taking an adverse action against a worker because they had a tattoo.  The City should not put employers in such a position as it will only increase costs for employers, especially small-businesses that are the lifeline of the City. In fact, the City is creating a significant financial burden for employers already suffering from a rash of frivolous lawsuits – if tattoos are “protected” then employers will face discrimination charges and claims every time someone is disciplined or terminated, and they happen to have a tattoo. When does it stop?  

Third, adding tattoos as a protected characteristic could harm businesses who want to maintain a legitimate image or workplace culture. In the hospitality industry, owners, managers, and employees come in all shapes and stripes. Some businesses foster an environment where employees are encouraged to express themselves however they see fit—often with colorful and detailed tattoos. Other businesses chose to focus on the image of the business and providing a unified and consistent image where certain tattoos are inappropriate. For example, many restaurants are focused on the food and do not want anything to take away from that presentation – not complicated tablescapes, or employees dressed differently. These restaurants focus on the service and food and do not want focus drawn to a server or busser’s choice of shirts or facial artwork. The employees are also free to work elsewhere, cover their tattoos (if possible) or simply not get tattooed. This “choice” is what makes tattoos inherently different from religion, national origin, race, gender, sexual orientation, race or the like. 

For these reasons, The Alliance believes that adding tattoos to the list of protected characteristics under the HRL is misguided and accordingly, it opposes the proposed legislation to do so.