Best Employment Law Lawyer Answers: Can I be fired for having tattoos? I was fired today – what should I do? How do you prove a wrongful termination claim?
Black’s Law Dictionary defines employment-at-will as: “Employment that is usually undertaken without a contract and that may be terminated at any time, by either the employer or the employee, without cause.” In 49 states, employment-at-will is the default rule with Montana being the exception. For example, in Ohio, employment is presumed to be at-will in the absence of facts or circumstances that indicate an agreement for a specific term. Absent very clear representations to the contrary, where there is no written contract, the employment is likely to be at-will. Even where there is a contract, “modern rule is that in the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which provides for an annual rate of compensation but makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at will be either party.” Henkel v. Educ. Rsch. Council of Am., 45 Ohio St. 2d 249, 251, 344 N.E.2d 118, 119 (1976).
With this in mind, it is the job of employment law attorneys to find an exception to the employment-at-will presumption. The easiest exception is by an express contract, which can be an individual contract with the employee or a collectively bargained contract through a union. However, the most common way to find a wrongful termination claim is if the termination violates federal or state laws. For example, Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fire an employee because of that employee’s race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), or national origin. The Americans with Disabilities Act (“ADA“) provides the same protection to disabled workers. Many statutes have anti-retaliation provisions to prevent employers from firing employees based on their opposition to unlawful conduct or for exercising their protected rights. For example, employees cannot be fired for reporting or participating in an investigation regarding employment discrimination under Title VII. Employees cannot be fired for requesting leave under the Family and Medical Leave Act (“FMLA“) or in retaliation for filing a Workers’ Compensation claim. Under the Fair Labor Standards Act (“FLSA“) Employees cannot be fired for reporting wage violations. And the Uniformed Services Employment and Reemployment Rights Act (“USERRA“) protects military members when returning to civilian jobs. There are also public policy exceptions that protect employees who refuse to engage in unlawful activities or report conduct that endangers other workers, patients, or the public.
If this sounds complicated, that is because it is. There are so many small technical issues that go in to determining if the termination of an employee’s employment was wrongful. That is why it is always best to contact a qualified employment law firm that focuses on employee’s rights.
Our employment law lawyers have blogged about situations that create a wrongful termination (See Can I Be Fired For Reporting COVID Violations?; Can I Be Fired For Exploring Retirement Options?; Can You Be Fired For Being Gay, Lesbian, Trans?; I Was Fired After I Reported A Violation At Work!; Can I Be Fired For Reporting Discrimination To HR?; Fired In Retaliation For Reporting Sex Harassment?)
A recent New York Post article, Woman ‘Shocked’ By Boss’ Reaction To Showing Off Tattoos At Work, gives us employment lawyers another top opportunity to address this issue. The article points to a now-viral LinkedIn post, in which Jessica Leonard talked about her experience hiding her double arm, full sleave tattoos while working at a private equity firm because she feared the consequence. After years of hiding her tattoos, Jessica finally asked her boss if she could post a picture of her bare tattooed arms on LinkedIn. Thankfully, in this story, the boss was open minded and had her profile on the company website updated to include a picture with her tattoos.
But what if it had gone the other way, like many of the commentators on the LinkedIn posting, who said that showing or even having the tattoos was unprofessional. One commentor, who is the principal at another business, went so far as to say: “My personal opinion is that tattoos are visual noise and distracting in a work environment. The same goes for workers with piercings where I’m forced to look at them while talking/interacting with them. It is a form of passive aggression toward a person who chooses to not be tattooed/pierced. The unadorned body is beautiful in its quiet simplicity and makes no demands of others.” Another person wrote: “Wow, this is so terrible. If I saw this (sic) I would walk right back out. You went from looking like you could run the company to looking like an at-home worker. Professionalism means looking the part, not posting an (sic) weekend photo. 😒” So, what happens if one of these people is the boss making the hiring or firing decisions and fires you for having a tattoo (or multiple tattoos)? Well, you are probably SOL, because, if you are an at-will employee, there termination is not based on a protected class (race/color, religion, gender/sex, pregnancy, LGBTQ+ status, national origin, age, or disability) or engaging in a protected activity (using FMLA, filing for Worker’s Compensation, or reporting or refusing to engage in unlawful activities).
But look at the other side from the perspective another commentator, a Chief Marketing Officer at a healthcare company, who wrote: “HR will probably have a problem with me stating this…but having tattoos probably gives you an advantage in my book if you are interviewing with me. If the work is done well – non-verbally it says to me: you can handle pain, you are creative, you are proud of yourself, you are expressive and you are confident. … Now, if it is a poorly executed piece or displays hate or ignorance…well that’s another story…” This guy is openly stating that he will discriminate in favor of the well-executed tattooed applicants! Is this legal? Yep. All discrimination is not unlawful. Employers discriminate all the time – against the poorly dressed, the less educated, and people they think are just ugly – all legal because it does not fit into any of the employment law exceptions to employment at-will. An employer can legally discriminate against and fire employees because they are left-handed, have a birthmark, are too young or likes chocolate chip cookies more than oatmeal raisin.
Once again, if you find yourself fired and unsure if you have a discrimination or wrongful termination claim, don’t guess when you can get a completely free initial consultation.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer for an FMLA or worker’s comp retaliation issue, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Toledo, Cincinnati, and Detroit to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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