By DAVID C. COMSTOCK JR.
The Los Angeles (CA) Fire Department (LAFD) has adopted a policy that prohibits firefighters from displaying tattoos while they are on duty. 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. Media 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. (Pelisek, Christine, “Los Angeles Fire Fighters Fume Over ‘No Show’ Tattoo Policy, Los Angeles Weekly, June 12, 2008.)
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? 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.
DENIAL OF EQUAL PROTECTION AND DUE PROCESS
In 1997, the City of Hartford (CT) revised its uniform and appearance standards for all police officers to address tattoos. The new rule provided, in part: “Tattoos that are visible to the public and deemed offensive, immoral, or present an unprofessional appearance, as deemed by a supervisor, shall require the officer to cover said tattoo with a bandaging type material or a long-sleeve shirt in accordance with the uniform-of-the-day standards.”
In 1999, the departmental order was amended to designate the chief of police, instead of a supervisor, as the individual responsible for determining whether a tattoo was offensive, immoral, or presented an unprofessional appearance.
In 2002, a city police department detective wrote a letter to the police union president, raising several concerns. One concern involved spiderweb tattoos on several officers within the department. The complaining officer alleged that the spiderweb tattoo was a symbol of the Aryan nation and symbolized race hatred of nonwhites and Jews. The officer opined that it was unacceptable for a police officer to wear this tattoo in plain view, knowing that it offended other officers and the public. Copies of this letter were forwarded to the city officials, including the police chief.
From his investigation, the chief learned the following: “The spiderweb tattoo is often found on or under the arm of racists who have spent time in jail. In some places, one apparently ‘earns’ this tattoo by killing a minority. However, nonextremists may sometimes sport this tattoo as well, unaware of its other symbology, simply because they like the design.”
In April 2003, the police chief revised the general order relating to tattoos as follows: “The chief of police has the authority to order personnel to cover tattoos that are deemed offensive and/or present an unprofessional appearance. Personnel shall cover the tattoo with either flesh-toned, navy blue, or white type material that matches the uniform shirt or wear a long-sleeve shirt in accordance with the winter uniform of the day standard.”
On the same day the order was amended, the police chief issued a memorandum to all officers, which determined: “A visible spiderweb tattoo is offensive and, therefore, as Chief of Police … I am ordering everyone to cover this tattoo … while you are in an on-duty capacity or wearing the Hartford Police uniform.”
Five police officers then sued the city, challenging the order requiring them to cover the tattoo and the regulation authorizing the police chief to order covering tattoos deemed offensive or unprofessional. (Joseph Inturri, et al. v. City of Hartford, Connecticut, et al., 365 F.Supp.2d 240, aff’d 165 Fed. Appx. 66.)
The city and the individual police officers agreed that there was no evidence that the officers who sued had the spider tattoo as “symbols of any racist or antisemitic philosophy or statement.” In fact, the officers were unaware that the spiderweb tattoo had any such connotation or were “expressive conduct.” The individual police officers alleged that the city violated 42 U.S.C. Section 1983 by denying their right to free expression under the First and 14th Amendments of the United States and by singling them out for different treatment in violation of the Equal Protection Clause of the 14th Amendment.
The officers alleged that the tattoos were merely decorative; therefore, the court ruled that there was no denial of the officers’ rights to freedom of expression under the First and 14th Amendments. In addressing the equal protection argument, the court noted that the 14th Amendment provides that “No state shall … deny to any person within its jurisdiction equal protection of the laws.”
The court wrote: “The purpose of the Equal Protection Clause of the 14th Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” (Inturri at page 247, other citations omitted.)
The district court noted that as long as a plaintiff alleges that he or she is treated differently than similarly situated persons, an individual maintains an equal protection argument as long as there is no rational basis for the differential treatment. In addition, a plaintiff may also assert a selective prosecution equal protection argument. The Hartford officers alleged that the city violated their rights by arbitrarily and capriciously singling them out for differential treatment, thus raising both a “class of one” equal protection claim and a selective prosecution claim.
In addressing the equal protection claim, the court acknowledged that different levels of scrutiny are applied to different classifications. At a minimum, a statutory classification must be rationally related to a legitimate government purpose. Classifications based on race or national origin and classifications affecting fundamental rights are given the most scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny which generally has been applied to discriminatory classifications based on sex or illegitimacy.
The Hartford officers argued that the court should apply intermediate scrutiny to their equal protection claim, while the city maintained that the court should apply the rational basis standard of review. Under the intermediate level of scrutiny, the government had to show that the challenged legislative enactment was substantially related to an important governmental interest.
The officers argued that the right to personal appearance is an “important” right but not a “constitutional” right. Although individuals have often argued their right to a personal appearance, courts have consistently upheld the ability of public employers to regulate their employees’ appearance, especially if the state has a rational, nonarbitrary reason for doing so. In fact, courts have long held that a city, through its police chief, has a right to promote a disciplined, identifiable, and impartial police force by maintaining its police uniform as a symbol of mutual government authority, free from expressions of personal bent or bias. [Riggs v. City of Forth Worth, 229 F.Supp.2d 572, 581 (N.D.Tex. 2002), quoting Daniels v. Arlington, 246 F.3d 500, 503 (5th Cir. 2001).]
In reviewing the cases on regulations to employees’ appearances, the court found that the “rational basis,” rather than the intermediate level of scrutiny, was the applicable standard of review. Rational basis review requires the law or rule to be rationally related to a legitimate governmental interest. A law or other official action will survive this level of scrutiny unless the plaintiffs demonstrate that the class-based distinctions are wholly irrational.
In the Hartford case, the police chief and his command staff were concerned that the spiderweb tattoos would negatively affect relations among department officers and between the officers and the Hartford citizens, especially those from minority groups. This concern arose from a prior history of troubled race relations within the city. The court noted that this decision was not arbitrary, as the police chief had researched the issue, and while individual officers might disagree with the chief’s decision, he had a rational basis and justification for ordering the tattoos to be covered. The court, therefore, found that the chief’s memorandum ordering that on-duty or uniformed officers’ tattoos be concealed be rationally related to the department’s legitimate interest in fostering harmonious race relations both within the department and the community.
The Hartford officers also argued that they were singled out as a “class of one” (individuals with a spiderweb tattoo), since there was no dispute that only the plaintiffs’ visible spiderweb tattoos had been ordered covered by the police chief and that no action was taken against any other police officer with a visible tattoo. The court assumed that the plaintiffs had been intentionally treated differently from other tattooed police officers and, therefore, looked into whether or not the plaintiffs could demonstrate that there was “no rational basis for the difference in treatment.” A government official’s decision “can be considered irrational only when [the official] acts with no legitimate reason for [his or her] decision. In other words, the official’s acts must be “irrational and wholly arbitrary.” The court found that the chief’s order to cover the spiderweb tattoos was rationally related to a legitimate governmental interest.
The plaintiffs also argued that they were selectively prosecuted. In a selective prosecution claim, a plaintiff must demonstrate that the differential treatment was based on an impermissible reason. Thus, the officers must show that they were treated differently from other similarly situated individuals and that such differential treatment was based on an impermissible consideration such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. The officers did not present any such evidence to the court.
Finally, the plaintiffs argued that the department’s tattoo rule was constitutionally vague and interfered with their rights to express themselves freely. The due process clause in the 14th Amendment requires laws to be sufficiently clear to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply them. In examining these challenges, courts will consider the context in which the regulation was enforced and will determine whether the plaintiff was given a specific warning on the prohibited conduct.
The court noted that the tattoo regulation failed to identify any specific tattoos that must be covered and rarely provided the police chief with the authority to order specific tattoos covered if they were deemed “offensive” or “unprofessional.” Therefore, under the existing regulation, a police officer can display a tattoo while on duty or in uniform until the chief issues a subsequent order declaring the tattoo offensive or unprofessional.
In this case, the controversy arose when the police chief issued a memorandum requiring all police officers to cover visible spiderweb tattoos. The court noted that at the time the memorandum was issued, the officers had sufficient notice that having their spiderweb tattoos visible while on duty or in uniform was prohibited conduct and that those tattoos must be covered. The officers argued that it was the decision to get the tattoo, rather than the directive to cover the tattoo, that required advance and specific guidance. However, the court found that the burden of covering those tattoos with a sweatband-type material was not substantial enough to eliminate the argument that the officers obtained the guidance needed at the time the tattoo was obtained, especially since no expressive conduct was claimed, no interference with the plaintiffs’ ability to perform their duties was raised, and no significant personal discomfort was argued.
The court pointed out that since at least 1997 the plaintiffs had a general notice that tattoos were subject to regulations by the department’s command staff while they were on duty or in uniform, and that they were further aware that any tattoos, including spiderweb tattoos, were subject to review by superiors and could be ordered covered while on duty or in uniform.
The court also addressed the argument that it was impossible for officers to understand which tattoos might be labeled as “unprofessional.” The officers argued that the general order should set forth the specific tattoos that are deemed offensive and that the administration should keep that list current. The court found that this proposed requirement would place too high a burden on the department. Limiting the standards of conduct or appearance to specifics such as George Carlin’s “Seven Words You Can’t Say on Television” would be too restrictive in prohibiting certain tattoos and is not required by the due process vagueness test.
In conclusion, the court found that a rational basis was the appropriate standard for determining the officers’ equal protection claim, that the police chief’s order did not violate the officers’ equal protection rights, and that the regulation was not vague in violation of the due process clause. The chief’s spiderweb tattoo ban was upheld.
DENIAL OF FREEDOM OF EXPRESSION
Michael Riggs was a Fort Worth (TX) police officer. Following his graduation from the academy, he was assigned to the bike unit. While on duty, and after a discussion with a supervisor, Riggs ordered the towing of a car that later turned out to belong to Fort Worth’s mayor. After completing a memorandum about the incident, Riggs’ superiors informed him that he had done nothing wrong.
Twenty-seven days after the towing, Riggs received a notice that he was no longer authorized to wear bicycle shorts or short-sleeve shirts and that he was only authorized to wear a police uniform consisting of long sleeves and long pants. Riggs then met with the police chief to discuss the order. Riggs later alleged that during that meeting the chief indicated that the whole issue regarding Riggs’ tattoos was first brought to the chief’s attention by the mayor after Riggs ordered the mayor’s vehicle to be towed.
Two months later, Riggs was transferred from the bike unit to the DWI unit. Riggs claimed that the transfer was “like being demoted or fired.” Subsequently, the chief wrote to Riggs explaining the reasons Riggs was required to wear long sleeves and long pants: “You have extensive tattoos on your arms and legs, which I believe detract from the professionalism of a Fort Worth police officer if the officer wears short-sleeve shirts and shorts.”
In August, Riggs suffered from heat exhaustion while on duty and was temporarily transferred to a desk job. Ten days later, Riggs was assigned to a “plainclothes” traffic unit and instructed not to wear a uniform. He was later allowed to wear a uniform but only if it included long sleeves and long pants. Thereafter, Riggs met with the acting police chief, and he instructed Riggs that he did not have to wear a protective vest if he was too hot in long sleeves. Riggs also alleged that the acting chief stated that he would never leave the desk job or be promoted because of his tattoo.
Riggs was later assigned to the DWI unit’s midnight shift. Subsequently, the acting police chief was sworn in as the chief of the city. Eventually, after a number of other incidents involving the city, Riggs filed suit against the former and current chief, alleging that he was unlawfully removed from his bike patrol unit position to a less desirable job because his tattoos were visible to the public when he wore the bike patrol uniform and that the chief had ordered him, in violation of the department’s dress code, to wear long sleeves and long pants to cover his tattoos. Riggs also called himself a white male of Celtic descent and claimed that he had been singled out because of his race, sex, national origin, and statements of expression. The court interpreted the plaintiff to mean “statements of expression” as his tattoos. (Riggs v. City of Fort Worth, 229 F.Supp.2d 572.)
Race, sex, and national origin are protected categories under the Equal Protection Clause. Race and national origin are “suspect” categories; sex, or gender, is a “quasi-suspect” category. “Statements of expression” can be speech protected by the Equal Protection Clause as a fundamental right under the First Amendment.
Because Riggs alleged discrimination based on his race, sex, national origin, and exercise of his fundamental right of free expression, he invoked the court’s strict scrutiny. Such discrimination is excused only if it is employed to serve a compelling state interest or, in the case of sex discrimination, it is substantially related to a sufficient important governmental interest.
Even under these standards, to establish a constitutional violation under the Equal Protection Clause, Riggs had to prove that his race, sex, national origin, and protected expressions caused the police chief to treat him differently than others similarly situated not of his race, sex, and national origin or who had made protected expressions.
In reviewing the evidence, the court found that Riggs failed to provide any evidence that the police chief singled him out and forced him to wear a uniform consisting of long sleeves and long pants or transferred him out of the bike unit because he was either white, male, of Celtic descent, or a combination of the three. In fact, the court noted that Riggs actually provided evidence that suggested otherwise.
Riggs also argued that his rights under the Equal Protection Clause were violated because he was treated differently from similarly situated persons with tattoos by being forced to cover his tattoos and, as a result, was transferred out of the bike unit. Riggs claimed that this anti-tattoo discrimination violated his fundamental right to freedom of expression under the First Amendment. The court noted that, as with any First Amendment analysis, the threshold issue was whether tattoos were a form of expression or speech protected by the First Amendment. The court noted that although few courts had considered the issue, those that had had agreed that a tattoo is not protected speech under the First Amendment. [See Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303 (8th Cir. 1997) stating that “the tattoo is nothing more than ‘self-expression,’ unlike other forms of expression or conduct which receive First Amendment protection.”]
Because tattoos are not protected expressions under the fundamental First Amendment right of speech, strict scrutiny, though invoked by Riggs, was not appropriate. Instead, the claimed (tattoo) discrimination must be rationally related to a legitimate state interest. In other words, for the chief’s order to pass a constitutional challenge, he must merely have minimal justification for treating Riggs differently from other tattooed police officers.
The chief claimed that enforcing the policy requiring Riggs to wear long sleeves and long pants was “to ensure a professional uniform appearance to the public of uniformed Fort Worth police officers” and that he “felt that displaying massive tattoos distracted from the uniform appearance necessary to good police work” and a “police officer’s uniform is not a forum for fostering public discourse or expressing one’s personal beliefs.” Addressing the fact that Riggs was the only police officer required to cover his tattoos, the chief wrote, “No other Fort Worth police officer has been brought to my attention with such tattoos so as to rise to the level of unprofessional appearance as does Officer Riggs.”
In reviewing the case law, the court acknowledged that the United States Supreme Court had previously held that a law enforcement agency’s “[C]hoice of organization, dress, and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State’s police power. Courts have long held that the city, through its police chief, has the right to promote a disciplined, identifiable, and impartial police force by maintaining its police uniform as a symbol of neutral government authority, free from expressions of personal bent or bias.’” [Kelley v. Johnson, 425 U.S.238, 247 (1976) and Daniels v. Arlington, 246 F.3d 500, 503 (5th Cir. 2001), quoted in Riggs v. City of Fort Worth, 229 F.Supp.2d 572,581.]
The court concluded that the police chief had a legitimate, nondiscriminatory reason for requiring that the only officer in the police department who had tattoos covering his legs and arms, Michael T. Riggs, wear a uniform that was not required of other police officers. Therefore, the court granted the police chief’s and city’s motion to have the case dismissed based on Riggs’ inability to prove a constitutional violation.
RELIGIOUS DISCRIMINATION
Sheldon Swartzentruber was a factory worker at Gunite Corporation; he was also a self-professed member of the American Knights of the Klu Klux Klan. The company maintained and enforced a written policy affording an equal opportunity for employment to all individuals “regardless of their religion, race, color, sex, age, national origin, handicap, or veteran status.” It also prohibited sexual and racial harassment.
Swartzentruber was employed for approximately five years when a group of black employees complained to the company’s personnel manager that Swartzentruber was displaying a recently obtained tattoo on his forearm of a hooded figure standing in front of a burning cross. The employees said they found the tattoo offensive and threatening. After investigating the complaints and inspecting the tattoo, the manager determined that the tattoo offended him and others and contributed to a hostile working environment.
The manager instructed Swartzentruber to cover the tattoo while at work and told him that failure to do so could result in disciplinary action, including discharge. Swartzentruber raised concerns about cleaning his arm to avoid dermatitis problems and was given permission to use the wash basins as required but was also told to cover the tattoo whenever he was away from the wash basin. Swartzentruber did not tell the manager his tattoo was religious in nature and that his religious beliefs required him to display the tattoo at work. Eventually, Swartzentruber filed both a union grievance and a claim in court alleging that Gunite discriminated against him by not accommodating his religious beliefs when the company forced him to cover the tattoo. [Swartzentruber v. Gunite Corporation, 99 F.Supp.2d 976 (N.D. Indiana, 2000).]
Title VII makes it unlawful to discriminate against an individual because of that individual’s religion. [See 42 U.S.C. §e-2(a)(1).] To establish a prima facie case of religious discrimination, a plaintiff must show that (1) he has a sincere religious belief, observance, or practice that conflicts with an employment requirement; (2) he informed his employer of the conflict; and (3) the religious practice was the basis for the adverse employment decision. Once a plaintiff makes a prima facie case, the statute imposes, “an infirmative duty on employers to reasonably accommodate the religious observances and practices of its employees unless the employer can demonstrate that such an accommodation would cause undue hardship to the conduct of its business.” [EEOC v. Ilona of Hungary, Inc. 108 F.3d 1569, 1574-1575 (7th Cir. 1997) (Other citations omitted).] The employer need not select the employee’s proposal of reasonable accommodation—any reasonable accommodation by the employer is sufficient to comply with the statute. (See Ansonia Bd. of Educ. v. Fillbrook 479 U.S. at69.)
Swartzentruber claimed that since 1996, he had been a member of the Church of the American Knights of the Ku Klux Klan, a religious organization, and that the “Firey Cross” tattoo on his arm was one of the church’s seven sacred symbols. Swartzentruber claimed that he was treated unfairly and suffered adverse employment action because he was required to cover his tattoo while others were not required to cover what he viewed as offensive tattoos. The court found Swartzentruber did not prove a prima facie case because he could not demonstrate how the requirement to cover his tattoo at work conflicted with his religious beliefs. In fact, there was no evidence that Swartzentruber even told Gunite about any conflict between his beliefs and the employer’s demand that the tattoo be covered.
The court further held that the complaint’s dismissal would be proper even if Swartzentruber could make out a prima facie case against Gunite because Gunite demonstrated that it had reasonably accommodated the asserted religious observance or practice: “As [s]ome would certainly view a burning cross as a ‘precursor to physical violence and abuse against African-Americans and … unmistakable symbol of hatred and violence based on virulent notions of racial supremacy.’” [United States v. Hayward, 6 F.3d 1241, 1251 (7 th Cir.1993) (Quoting Charles H. Jones, proscribing Hate: Distinctions Between Criminal Harm and Protected Expression, 18 Wm. Mitchell Law Rev. 935, 948 (1992), quoted in Swartzentruber supra at 979).]
The court agreed with Gunite that any greater accommodation would cause it an undue hardship. Gunite demanded that Swartzentruber cover his tattoo because it violated the company’s racial harassment policy and offended other employees while accommodating (allowing him to work with the tattoo covered) a tattoo depiction of his religious belief that many would view as a racist and violent symbol. The court found that Title VII does not require more.
Government employees who want visible tattoos will find little support in a court of law. These three cases demonstrate 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.
DAVID C. COMSTOCK JR. is a partner with Comstock, Springer, and Wilson, LPA, in Youngstown, Ohio. He is a 25-year veteran of the fire service and chief of the Western Reserve Joint Fire District in Poland, Ohio. He also lectures on company officer operations, liability, and personnel issues. His articles have appeared in many fire service magazines, including Fire Engineering. He is president of the National Association of Fire and Emergency Service Attorneys.
