# Discrimination against body modification?



## Relayer (Nov 9, 2005)

What are your personal thoughts about not hiring someone because they have such things as visible tattoos (ie, arms, hands, neck, or face) and/or a visible piercing(s) (ie, nose, eyebrow, lips)?

Let's say that the person is otherwise easily the most qualified prospective candidate for the position.

Or, what if the person was equally as qualified as another without the body modification?

Would it matter to you if the job was one that dealt with the public?

Should such discrimination of this type be against the law?


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## pt4u67 (Apr 27, 2006)

Would you purchase a $3K suit from someone with piercings in his face and visible tattoos? Would you allow someone with piercing in his face and tattoos covering his arms with the word "Megadeth" tattooed across his knuckles to perform surgery on you or a loved one? 

I know its not fair but its the way it is. We are judged on our appearances and those things must be considered prior to someone permanently marking his body.


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## BertieW (Jan 17, 2006)

Depends on the business. I don't mind the coffee shop dude's piercings a bit.


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## Phinn (Apr 18, 2006)

> Should such discrimination of this type be against the law?


Absolutely not.

The employment relationship is private and mutually voluntary. To interfere with that relationship by *forcing *people to make employment decisions on the basis of certain criteria (or in disregard of their chosen criteria) is a violation of the fundamental right of freedom of association.

It is no different, morally, than using the State to intrude on other people's private relationships in other contexts, such as friendship or marriage.


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## Relayer (Nov 9, 2005)

Phinn, 

"The employment relationship is private and mutually voluntary." 

Of course, our lawmakers and courts have legislated and ruled otherwise.


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## Phinn (Apr 18, 2006)

> Of course, our lawmakers and courts have legislated and ruled otherwise.


Yes, they have. They are not, however, infallible.



> The dogma that the State or the Government is the embodiment of all that is good and beneficial and that the individuals are wretched underlings, exclusively intent upon inflicting harm upon one another and badly in need of a guardian, is almost unchallenged. It is taboo to question it in the slightest way. He who proclaims the godliness of the State and the infallibility of its priests, the bureaucrats, is considered as an impartial student of the social sciences. All those raising objections are branded as biased and narrow-minded. The supporters of the new religion of statolatry are no less fanatical and intolerant than were the Mohammedan conquerors of Africa and Spain.


-- Ludwig von Mises, _Socialism: An Economic and Sociological Analysis_ (1922)


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## Fogey (Aug 27, 2005)

I agree with Phinn on this one - so long as we're discussing private employers and employees. Public corporations, governments, &c are a different matter.


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## Relayer (Nov 9, 2005)

Phinn, 

I did not mean to imply that the gov't/courts are infallible. Only that they do make the law and, that being the case, however imperfect, it stands that employment is not a private mutual agreement.

Sorry for the unclear post.


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## pt4u67 (Apr 27, 2006)

Perhaps an attorney should weigh in however is it really discrimination to base it on something that a person has voluntarily inflicted upon himself. 

Skin color, national origin, ethnicity, etc. are things that we are born into/with. However piercings, tattoos and likewise other bodily modifications are voluntary and as such carry consequences. I wonder if the legal definition of discrimination would carry water in such cases?


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## Phinn (Apr 18, 2006)

> No, and I did not mean to imply that the gov't/courts are infallible. Only that they do make the law and, that being the case, however imperfect, it stands that employment is not a private mutual agreement.


I'm not trying to split hairs with you, but there is a fundamental distinction here -- legislatures may _purport_ to make the law, but what they actually make is merely legislation.

I'm aware that politicians have a network of well-paid, well-armed agents who are ready, willing and able to force us to do what they command us to do, but the mere act of writing documents that they call legislation does not somehow magically transform their words into something that is proper, correct, moral, intelligent or just.


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## Fogey (Aug 27, 2005)

Phinn said:


> I'm aware that politicians have a network of well-paid, well-armed agents who are ready, willing and able to force us to do what they command us to do, but the mere act of writing documents that they call legislation does not somehow magically transform their words into something that is proper, correct, moral, intelligent or just.


My contention is that government only exists insofar as one of two things are present: consent, or force. If neither is present, you may do what you will.


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## Phinn (Apr 18, 2006)

> Skin color, national origin, ethnicity, etc. are things that we are born into/with. However piercings, tattoos and likewise other bodily modifications are voluntary and as such carry consequences. I wonder if the legal definition of discrimination would carry water in such cases?


Under the current federal legislation, an at-will employer can take any employment-related action on the basis of any criteria, so long as it is _not_ one of the enumerated prohibited ones -- race, religion, creed, national origin, gender (sometimes), age (sometimes), etc.


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## Phinn (Apr 18, 2006)

> My contention is that government only exists insofar as one of two things are present: consent, or force. If neither is present, you may do what you will.


I don't understand. Consent or force on the part of whom?


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## Fogey (Aug 27, 2005)

Phinn said:


> Under the current federal legislation, an at-will employer can take any employment-related action on the basis of any criteria, so long as it is _not_ one of the enumerated prohibited ones -- race, religion, creed, national origin, gender (sometimes), age (sometimes), etc.


How is this enforced, in practise? Surely you have many Asian and other ethnic restaurants, for example, which are entirely comprised of staff of that particular ethnicity. Are those places forever on the verge of having a paramilitary squad invade and close them down, or is this clause widely ignored?


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## Fogey (Aug 27, 2005)

Phinn said:


> I don't understand. Consent or force on the part of whom?


Consent by the person in question, or force by the state.


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## Relayer (Nov 9, 2005)

Phinn,

You have lost me, here. 

I have made no defense of that what government/court does being "proper, correct, moral, intelligent or just." Or whether a "law" is really a 'law".

Can we please save these subjects for another thread?


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## Phinn (Apr 18, 2006)

> How is this enforced, in practise? Surely you have many Asian and other ethnic restaurants, for example, which are entirely comprised of staff of that particular ethnicity. Are those places forever on the verge of having a paramilitary squad invade and close them down, or is this clause widely ignored?


The grotesquely inefficient EEOC can initiate an action against an employer. For reasons known only to them, they have not targeted the Asian restaurant discrimination that runs rampant all around us.

Or a person who was adversely affected by an employment action on the basis of one of the prohibited criteria can sue in federal court.

I imagine that the reason that Asian restaurants have effectively been given a pass is that (a) they are small businesses and most cannot pay a money judgment, (b) the amount of money in controversy is rather small for waiter and busboy jobs.


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## Phinn (Apr 18, 2006)

> I have made no defense of that what government/court does being "proper, correct, moral, intelligent or just." Or whether a "law" is really a 'law".Can we please save these subjects for another thread?


I thought it was, in fact, a part of this thread. The question you asked is, What SHOULD be done?

My position is that legislatures should conform themselves to the fundamental principles of peaceful, harmonious society and permit people to freely associate in whatever mutually beneficial economic relationships as they see fit.


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## jackmccullough (May 10, 2006)

pt4u67 said:


> Perhaps an attorney should weigh in however is it really discrimination to base it on something that a person has voluntarily inflicted upon himself.
> 
> Skin color, national origin, ethnicity, etc. are things that we are born into/with. However piercings, tattoos and likewise other bodily modifications are voluntary and as such carry consequences. I wonder if the legal definition of discrimination would carry water in such cases?


Sure, chosing not to hire someone on the basis of appearance or body modification is discrimination. The question is whether it is prohibited discrimination. Employers, landlords, real estate sellers and agents, and people in other industries governed by antidiscrimination statutes are free to discriminate on all kinds of bases, except those bases that are specificaly covered by the law. The prohibited categories differ depending on the statute, between states, and even between the state and federal law. As long as the choice made by the potential landlord, employer, whatever, is not based on a prohibited category the discrimination is lawful.

In this case, there is no law that prohibits discrimination on the basis of tattoos, piercings, scarrings, or other body modification. I can certainly imagine a plaintiff arguing that discrimination on this basis would violate antidiscrimination law because it has a discriminatory impact on a protected category to which they belong. For instance, I think there have been cases in which employer policies requiring workers to be clean shaven have been held to have a discriminatory impact against Muslims, and it is conceivable that a similar argument could be constructed regarding some body modifications. Then, if the plaintiff can establish a prima facie case of prohibited discrimination, the employer would have the chance to establish that the standard expresses a bona fide occupational qualification (or, in other contexts, that business necessity supports the otherwise discriminatory practice).

As you can see, the issues can be quite complex. Nevertheless, without more information that would take it out of the area of pure choice, this doesn't sound like prohibited discrimination to me.


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## Trenditional (Feb 15, 2006)

Would I hire someone who was dealing with the public? It would depend on what type of services I was offering. If I was the owner of a piercing studio, yes I would hire them because they would be free advertising. If I owned a brokerage firm, no I wouldn't hire someone with obvious body piercings and or visible tattoos. Someone would not be qualified because not realizing the piercings were inappropriate would indicate they didn't understand the complexities of working in the public eye.

Should this be protected by the law? Hell no! If you want to get a job with a particular company, then comply to the hiring requirements of that company. Don't expect them to give you a paycheck and conform to your personal needs.


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## Étienne (Sep 3, 2005)

Phinn said:


> The employment relationship is private and mutually voluntary. To interfere with that relationship by *forcing *people to make employment decisions on the basis of certain criteria (or in disregard of their chosen criteria) is a violation of the fundamental right of freedom of association.


This is a philosophical point of view. A valid one, no doubt, but one refused by the majority of people in most Western societies today. I, for one, don't agree a bit, and it seems I'm not the only one.

Therefore, it seems to me you should not express your opinion on the matter as if that was the only acceptable truth.

PS: when you have time, please answer my question on the other thread (asking for your reasons for comparing the German NSDAP and the US Progressive movement in terms of economic policy)


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## ksinc (May 30, 2005)

Relayer said:


> What are your personal thoughts about not hiring someone because they have such things as visible tattoos (ie, arms, hands, neck, or face) and/or a visible piercing(s) (ie, nose, eyebrow, lips)?
> 
> Let's say that the person is otherwise easily the most qualified prospective candidate for the position.
> 
> ...


yes, still yes (good judgement is an important qualification too), yes, no, no


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## jbmcb (Sep 7, 2005)

You can choose to do almost whatever you want to your body. Employers can choose to hire (almost) whomever they wish. If you have body piercings and an employer has something against piercings, why would you want to work for them in the first place?


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## lee_44106 (Apr 10, 2006)

Phinn said:


> The grotesquely inefficient EEOC can initiate an action against an employer. For reasons known only to them, they have not targeted the Asian restaurant discrimination that runs rampant all around us.
> 
> Or a person who was adversely affected by an employment action on the basis of one of the prohibited criteria can sue in federal court.
> 
> I imagine that the reason that Asian restaurants have effectively been given a pass is that (a) they are small businesses and most cannot pay a money judgment, (b) the amount of money in controversy is rather small for waiter and busboy jobs.


One might also consider that, to the typical "American", working in an Asian restaurant is too beneath them. They may see themselves "deserving" much better jobs despite the fact that they have neither the educational background nor the skills necessary for better paying jobs.


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## Phinn (Apr 18, 2006)

> This is a philosophical point of view. A valid one, no doubt, but one refused by the majority of people in most Western societies today. I, for one, don't agree a bit, and it seems I'm not the only one.


Thank you for declaring my views to be valid. I live for your approval.

As for your argument _ad populum_, it would be nice if the word _majority_ were synonymous with _proper_, _correct_, _moral_, _intelligent_ or _just_, not to mention _efficient_ or even _beneficial_. Societies certainly have the ability to destroy themselves. It has happened more than once.



> Therefore, it seems to me you should not express your opinion on the matter as if that was the only acceptable truth.


You should not express your opinion about how I should express my opinions as though it were the only acceptable manner of doing so.



> PS: when you have time, please answer my question on the other thread (asking for your reasons for comparing the German NSDAP and the US Progressive movement in terms of economic policy)


I did a brief online search when I read your post, but was distracted by work. I have a brief overview posted on that thread.


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## Étienne (Sep 3, 2005)

Phinn said:


> Thank you for declaring my views to be valid. I live for your approval.


And I live for the day where I'll see you being civil in your answers, but I don't hold my breath.

It's funny that all the libertarians I know share not only the same talking points but also the same way of expressing them (never admit that there could be several valid opinions, etc.).


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## jeansguy (Jul 29, 2003)

1. Yes it is discrimination. No it should not be illegal. I don't mind piercings so much, but I could not accept a visible tatoo from a professional that I am dealing with (ie hands, neck, face!). I've never dealt with a professional with piercings, but I could probably accept an eyebrow or nose. Not a lip though, that would be over the line.

2. Everybody makes choices in life. If you want to become a lawyer you don't go to veterinary school. Similiarly, if you want to become MY lawyer, don't make your lips look like a curtain rod, and certainly don't tattoo your knuckes.


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## Chuck Franke (Aug 8, 2003)

When I am hiring someone to ship packages their ornamentation choices don't concern me. Back when I interviewed people with whom I expected to visit clients to discuss million dollar transactions? If I had even a suspicion that the person would not be well-received by the client I voted NO.

Wasn't personal, I had no desire to lose a commission because someone made a PERSONAL CHOICE to display their individuality rather than making every effort to convey a professional, confidence-inspiring image.

The simple fact of the matter is that if it impacts the employer's business the employer has a right to screen for it. This isn't hypothetical, it is reality. When I am wearing shorts, tee shirt and flip flops I receive one form of treatment. In a nice suit and tie with my hair coiffed carrying an expensive briefcase I am addressed as 'Sir' and treated with deference.

People make choices. People are responsible for those choices. I choose not to have myself inked or branded and I generally stay out of Jill's jewelry box. Were you to hire me to represent you to a client I would dress and groom myself in the manner that YOU found acceptable.

Sigh... Fat people can't blame fast food sellers.
Grunge Look enthusiasts not finding public facing employment is not the employer's fault.

Fine, you wish to emulate the demon from the Hellraiser movie series? Knock yourself out. I won't be hiring you for a modeling gig... nothing personal.


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## Kav (Jun 19, 2005)

An aquaintance of mine was a music student at U.S.C. She was bright, personable, a formidable musician ( Chello) could discuss Duke Ellington in one breath and Bach the next. Oh, and she needed a summer job. The local music store turned her down for this anorexic pincushion with a wardrobe of highly imaginative and individualistic black and crome. The creature sort of slumped at the register like a Slavadore Dali painting with a 1,000 mile stare and conducted transactions just like her high school exams- asking for help from the other clerk. I agree, people shouldn't be discriminated against for appearance; music store applicants, Washington Mutual customers- you know the type.


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## Chuck Franke (Aug 8, 2003)

My need for my weekly Kavlovian anecdote now met I can enjoy the rest of my week with the occasional burst of laughter at random intervals as my mind turns Kav's words into pictures.

You need to write a book. I'll need more than one copy.


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## Phinn (Apr 18, 2006)

> And I live for the day where I'll see you being civil in your answers, but I don't hold my breath.


_Mon dieu!_ Maybe we're having another cross-cultural conflict, but in my corner of the globe, adopting a tone of haughty condescension while pretending to validate someone else's views is considered uncivil.


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## jeansguy (Jul 29, 2003)

Chuck Franke said:


> Sigh... Fat people can't blame fast food sellers.


Are you sure? Some of it tastes _soooo_ good.


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## Fogey (Aug 27, 2005)

Chuck Franke said:


> My need for my weekly Kavlovian anecdote now met I can enjoy the rest of my week with the occasional burst of laughter at random intervals as my mind turns Kav's words into pictures.
> 
> You need to write a book. I'll need more than one copy.


Hear hear.


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## Lushington (Jul 12, 2006)

It is well-established under federal and state law - at least that state law with which I'm familiar - that employers may establish reasonable grooming and appearance standards, so long as they are not used as a proxy for unlawful discrimination. As a general rule, federal and state anti-discrimination law protects immutable characteristics, not matters of choice. There are some exceptions, of course: religion, creed, sexual orientation (perhaps in some cases), a few others. I suppose that one might run afoul of the law if one selectively prohibited tats in the workplace: okay for whites, not okay for hispanics; okay for women, not okay for women, that kind of thing. An interesting issue might also arise if an employer dismissed an employee after learning that he or she had a tatoo that was not visible; e.g., an employer fires a female employee after learning that she sports a "tramp stamp" which is not visible when she is on the job - although one might easily demonstrate that this is simply a straightforward case of sex discrimination. One of the more recent judicial discussions of the appearance issue is contained in the 9th Circuit's recent en banc decision in Jespersen v. Harrah's Operating Co., Inc. (9th Cir. 2006) 444 F.3d 1104, a case in which a female bartender at a casino was fired for refusing to wear makeup, as required by the casino's dress code. She brought a Title VII claim sex discrimination claim that was booted by the District Court on MSJ, a decision the 9th Circuit twice affirmed. Interestingly, in the most recent decision Justice Alex Kozinski dissented from the majority's opinion and believed that employee had created a triable issue of fact as to her Title VII claim; in doing so he noted:



> Women's faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on-and presumably enjoy wearing-cosmetics. But cultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed. So, too, a large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah's quaint notion of what a "real woman" looks like.


Justice Kozinski, of course, is one of the most "conservative" federal Circuit Court justices in the country.


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## globetrotter (Dec 30, 2004)

I was recently at a beach resort with my company. more than half of the salesforce had tatoos, including the VP of sales and marketing. nobodody had any below the elbow, on the neck or face. no earings on the guys. this is perfectly reasonable. I would never hire anybody with a weird peircing or a "over the line" tatoo.


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## jackmccullough (May 10, 2006)

Unless you were at a nude beach you still don't know if anyone had a "weird" piercing. All I can say is that just about anyplace on your body that you can imagine to stick a hole or a piece of metal, no matter how painful or revolting it seems, can be such a location.

Ouch!


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## globetrotter (Dec 30, 2004)

jackmccullough said:


> Unless you were at a nude beach you still don't know if anyone had a "weird" piercing. All I can say is that just about anyplace on your body that you can imagine to stick a hole or a piece of metal, no matter how painful or revolting it seems, can be such a location.
> 
> Ouch!


thanks for pointing that out.....


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## jackmccullough (May 10, 2006)

Believe it or not, one afternoon we spent some time in front of the computer, goggle-eyed at what people can think of to do to themselves, for a case involving body modification.

As I said in another thread, practicing law isn't boring.


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