Police Minister Bheki Cele caused a stir when he said that tattoos indicate gangsterism and would affect police employment. So how much influence can someone’s appearance have on your job prospects? Hugo Pienaar explains.
Discrimination based on a person’s appearance is an ever-changing area of law affecting employees and potential candidates around the world. Unconscious appearance preferences based on social norms lead to discrimination against employees and potential candidates when they do not meet certain unilaterally imposed norms.
In a country that has a constitutionally guaranteed right to personal autonomy and freedom of expression, one has to wonder how Police Minister Bheki Cele’s comments about tattoos are viewed.
In July, the minister addressed the media and announced the recruitment of 10,000 additional police officers. In his speech, the minister went through a list of requirements for these new officers and stated:
“If you have a tattoo, we won’t hire you because you tend to be a gangster.”
His comments caused several negative reactions.
Personal appearance discrimination
The 1996 enactment of the Constitution of the Republic of South Africa introduced several important industrial relations rights that now protect against several previously unrecognized grounds of discrimination. One of the grounds raised in Secretary Cele’s comments is discrimination based on personal appearance.
Tattoos have traditionally been associated with fringe personalities who wear them as a way of signaling their status as an outsider and rejection of mainstream society. With the exception of downright offensive tattoos that are racist or sexist for example, tattoos are more common and accepted in society in modern times.
Tattoos are a mutable characteristic, so they do not automatically qualify for legal protection.
Tattoos and piercings are often covered in an employer’s dress code and grooming standards. However, the recent surge in lawsuits in other jurisdictions, coupled with the public outcry over Secretary Cele’s comments, justifies a focus on tattoo-based discrimination.
Discrimination by tattoos in the US
In the US, there is no specific federal law regulating appearance discrimination in the workplace. As a result of this divide, individual states and districts have enacted prohibitions on discrimination in personal appearance—which extends to a person’s manner or style of dress and manner or style of grooming. In areas where there is no anti-discrimination law against personal appearance, employees are often required to link the appearance discrimination to a pre-existing protected category of discrimination.
This solution, while attractive, has been largely unsuccessful when taken to court. into court Riggs against the city of Fort Worth 229 F Supp 2d 572 ND Tex when faced with tattoo discrimination based on free speech, he sided with a police department and ruled that the employee’s tattoos were extensive enough to be considered unprofessional.
In Cloutier v Costco Wholesale Corp 390 F 3d 126 1st round  the court dealt with tattoo discrimination justified by religious freedom. The court rejected the employee’s claim that her see-through eyebrows should be allowed for religious reasons, stating that this went beyond reasonable adjustments.
Where the employee succeeded, the discrimination ground that ultimately led to the court’s decision was based on sex, not on appearance.
In Hub Folding Box Company v Massachusetts Commission Against Discrimination 52 Mass App Ct 1104  the court agreed that having a female employee cover up her tattoos when her male colleague was not expected amounted to discrimination based not on appearance, but on the basis of gender.
Appearance discrimination in the US is still an issue that has not been fully addressed. Where it has been challenged, employees have had to put forward a stated ground of discrimination and have generally been quite successful.
Discrimination by tattoos in the UK
In the UK, workers who have been or are being discriminated against on the basis of their appearance usually do not automatically receive legal protection. For example, employees had to link the discrimination they experience to a stated ground in order to substantiate their claim.
Discrimination by tattoos in South Africa
Like the US and UK, South Africa has no express provisions in Section 9(3) of the Constitution or Section 6(1) of the Employment Equity Act 55 of 1998 prohibiting appearance based on tattoo discrimination. As such, employees will have to base their claims on a stated ground. Thus, to pass, an employee would have to argue that personal appearance should be protected under freedom of expression or personal dignity.
However, unlike in the US and UK, South African courts have reaffirmed their commitment to values such as dignity, freedom of religion, opinion and expression, and equality over restrictions on a person’s personal appearance.
In IMATU v City of Tshwane Metropolitan Municipality  ZAGPPHC 412, dealing with two female metropolitan officers who refused to cut their hair, ruled that individual expression in this case trumped business needs that made the training agreements illegal. In Department of Correctional Services v POPCRU  (2) BLLR 110 (LAC) the court ruled that if one’s haircut does not interfere with one’s ability to perform a job, a policy requiring an employee to change their haircut may violate rights such as the right on religion.
In Dlamini v Green Four Security  (11) BLLR 1074 (LC), despite the fact that beard-cutting policies were an inherent requirement of the job, the court reiterated the importance of policies that respect constitutional rights.
Minister Cele’s statement regarding hiring candidates with tattoos leads to several possible violations of rights due to South Africa’s racial, ethnic, religious and cultural diversity.
This fact is emphasized by court decisions in South Africa that have refused to follow the international approach to outward discrimination. So while South African law does not expressly provide for the right not to be discriminated against on the basis of one’s tattoos, the courts have generally sided with the worker where a policy restricts a chosen appearance related to religion, expression or dignity.
As such, the Minister’s statement, if put into practice, could be considered discriminatory and thus illegal if challenged under a constitutional law or the provisions of the Labor Relations Act 66 of 1995.
Hugo Pienaar, Director in the employment law practice at Cliffe Dekker Hofmeyr. Fin24 promotes freedom of expression and expression of different views. The views of columnists published on Fin24 are therefore their own views and do not necessarily represent the views of Fin24.