Sometimes I feel like the last American man without a tattoo. The modern phenomenon of body art is both outre and now mandatory. This rapid transition can make it difficult for companies to determine what types of employee behavior are acceptable and which are not. That said, I think it’s clear by now that tattoos aren’t just acceptable on the job. If any business requires that its employees cover their ink without very good reason, they will likely be protected by courts.
Nearly a century ago, architect and critic Adolf Loos delivered a lecture, “Ornament and Crime,” that famously declared, “The modern man who tattoos himself is either a criminal or a degenerate.” Say that as an architectural critic assessing the uses and abuses of ornamentation, and you might just start an ascetic artistic movement. Say it in the HR department of a modern corporation and you’re just begging to be sued.
A few weeks ago, Law360 warned, “Employers that restrict tattoos should tread carefully.” It’s not that wearing ink is protected by statute, according to the legal trade paper, just that the moment seems near when courts will miraculously discover that wearing tattoos is a constitutional right. You might consider getting tattoos that illustrate emanations or penumbras now.
“I don’t know of any law that directly protects having tattoos,” Chicago lawyer Andrew Scroggins told Law360. Such are the issues — those in which an absence of red-letter law presents judges with the opportunity to improvise — with which courts have the most fun.
The Equal Employment Opportunity Commission supported a fast food worker two years ago who claimed that his wrist tattoo was protected under Title VII of the Civil Rights Act. This was because it was part of his religious observance. According to the server, the tattoo was a tenet of his faith. It was a lesser-known Egyptian form of Neo-paganism called Kemeticism. Keep in mind that you must declare yourself Kemetic if you plan to have a tattoo done in a conservative and ink-averse area.
California tattoo workers have the advantage over any other tattoo-averse employer. It is as simple as declaring that the tattoos they are wearing express political views. Then again, I suspect that were one to have a visible MAGA slogan on one’s arm, employers in California may prove to be less tolerant of the body art than if one was sporting a Maori face tattoo.
We are now back to Mr. Loos’ animadversion for tattoos. It’s hard these days to recall the role tattoos had in an appalling practice of the 18th and 19th centuries — the collecting of severed heads.
Joseph Banks, a naturalist, sailed with Capt. James Cook sailed to the South Pacific in the 1770s with naturalist Joseph Banks. He discovered that New Zealand tribesmen had a habit of cutting off and then conserving the heads of their defeated opponents. For a preserved head and heavily tattooed facial, a Maori man traded his bank account with banks. The tattooed head was huge in Europe. Because of their elaborate designs and leathery flesh, all the fashionable museums desired them. “It was the intricate facial tattoos worn by Maori chiefs that made their heads particularly attractive to Europeans,” according to historian Frances Larson in her book Severed: A History Of Heads Lost And Heads Found. Tattoos had once been symbols of a chief’s power and courage, but the Europeans made such a market for the nasty things that they became morbid mass-produced decorations. “Maori chiefs were forcibly tattooing their slaves before killing them to sell their heads for a profit,” Larson writes. British Maj. Gen.Horatio Robley owned a personal collection of about 30 Maori headpieces by the 1890s.
Before getting inked with Maori tattoos, consider this problem: It’s not that one is indulging in “cultural appropriation,” but nor is it a celebration of New Zealand’s indigenous people. One is embracing an art that, with the encouragement of Europe’s natural scientists of the day, nearly led Maori tribes to genocide.
Eric Felten is an award-winning James Beard Award author How’s Your Drink?
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