9.05.2018

A Lot of Ink Gets Used on Tattoos

Subject to any guidelines, agreement, or policies to the contrary, an employee is allowed to turn up to work wearing an ugly tie or with a horrific haircut. An employee’s appearance, is, within reason, up to the particular employee in question. So why the recent fuss about tattoos – particularly those with cultural significance?

In recent weeks, Air New Zealand has (no doubt to its dismay), become embroiled in this debate – on 28 May 2013 The New Zealand Herald ran a story about Claire Nathan, a prospective employee whose “dream of being an air hostess” was “dashed after Air New Zealand turned her away because of her ta moko”.

According to the story, Ms Nathan was asked to fill out a form asking if she had any visible tattoos. Ms Nathan had a ta moko tattoo on her left arm, referencing her children and heritage, and thought that Air New Zealand would “be quite proud to have someone with a ta moko working and representing New Zealand”.

Needless to say, she was wrong. Air New Zealand informed her that, as she was applying for a “customer-facing role”, tattoos that could not be covered by the uniform were unacceptable, and stopped a subsequent interview on the spot. Air New Zealand also later claimed to The New Zealand Herald that tattoos could be seen as “frightening or intimidating” in many cultures, and that a ban on visible tattoos was standard practice throughout the airline industry, although it appears that this was never discussed with Ms Nathan.

Air New Zealand’s decision sparked a controversy that everyone seemed to weigh in on. Maori Affairs Minister Pita Sharples called the policy “a contradiction” and “ironic”, and the Prime Minister questioned the wisdom of such a policy in light of the fact that visitors to New Zealand who view aspects of Maori culture would see a number of tattoos.

The New Zealand Herald followed up its reporting with an editorial on 30 May 2013 that took the opposite view: it supported Air New Zealand’s right to manage its business, including decisions on whether frontline staff could have visible tattoos or not. In essence, the editorial took the position that only Air New Zealand could judge whether customers would be frightened or intimidated by visible tattoos.

It has been widely noted that Air New Zealand is the same airline that uses musicians and All Blacks with visible tattoos to promote its brand. It also prominently uses a koru image as its corporate logo and on the tails of all its aircraft.
So, is this a double standard? And who is in the right?

The Human Rights Act 1993 prohibits discrimination on the grounds of race or ethnic or national origins. Further, the Human Rights Commission’s website states that a “person of Maori descent may not be denied employment… because they wear moko visible”. While that passage refers to facial tattoos, it is equally applicable to any form of traditional cultural tattoo.

This would seem to support Ms Nathan’s position.

Yet, as we reported in our December 2011 edition of Employment News, there is a similar case that came out in favour of the employer. The Human Rights Review Tribunal decided in Haupini v SRCC Holdings Ltd (Hapuni) that a request by an employer to an employee serving customers (at a function) that the employee cover up her ta moko on her forearm was not discrimination under the Human Rights Act 1993.

However, there are a couple of important things to note about Haupini. The first is that Ms Haupini was merely asked to cover up her tattoo (and had she not done so, the employer would not have stopped her working) – whereas Ms Nathan had to have hers covered up by a uniform, otherwise she could not work as a flight attendant.

The second is that the Human Rights Review Tribunal clearly stated that its decision in Haupini should not be taken as binding precedent – as no evidence had been presented that Maori would see being asked to cover up ta moko as “disrespectful of their whakapapa, cultural tradition, and custom”.

In Our View

So what does all this mean?

A number of commentators have noted that Air New Zealand is prepared to adopt parts of Maori culture for commercial gain but is also quite prepared to deny employees who belong to that culture the right to express themselves. However, at law, Air New Zealand (and other employers) are entitled to have a policy that requires tattoos to be covered up.
Any employer who wants to develop a policy on uniform or appearance needs to ensure it is for legitimate business reasons, and is not ‘targeting’ specific groups (be they religious, cultural or ethnic) with the requirements. Employers should endeavour to accommodate employees’ expressions of their individuality. If there is a policy that goes so far as prohibiting certain items (headwear, jewellery, tattoos/ta moko) then employers need to make employees aware of this (and the reasons for it) from the get-go.

As a footnote, Air New Zealand says that they are now reviewing their policy. Regardless of what happens, it appears that Ms Nathan no longer has any interest in working for them.

Ultimately, it seems that no one was a winner.

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