News
Facial Discrimination: taking it on the chin?
When I was growing up, tattoos were virtually the exclusive preserve of sailors, and other tough guys who you might expect to find drinking Jack Daniels and listening to George Thorogood.
Times have changed.
Now the tattoo is a ubiquitous label of cool amongst the hip - rock stars, sportspeople, and virtually every 16 year old girl on Lambton Quay.
The nature of tattoos has changed too. Gone are the days of a limited selection of ship's anchors and "Mum" love hearts. Enter the age of Celtic knots, protective angels and Polynesian designs.
Not everyone likes tattoos. In fact, many older people seemed to have significant reservations about their new-found popularity.
But can an employer refuse to hire somebody who has a tattoo?
This issue may be one of the more difficult to resolve as a matter of law. As a starting point, one needs to have a careful look at New Zealand’s anti-discrimination legislation - the Human Rights Act.
The legislation prescribes a number of different situations in which "prohibited" discrimination is not allowed. It includes such things as the way in which a person may make a decision about provision of accommodation (ie whether you can rent a flat or not), whether you can be accepted for training or study, and whether you are hired for a job.
The definition of what is "prohibited" discrimination is significant. Not every form of prejudice is rendered illegal by the Act.
On the one hand, a person may not discriminate on the basis of sex, marital status, religious or ethical belief, race, ethnic or national origin, age or sexual orientation.
On the other hand, however, there is no prohibition against discrimination on the basis of such things as how good looking a person considers you to be. Some academic writers have described this form of prejudice as "facial discrimination".
So where is the line drawn concerning tattoos?
This issue has recently been brought to the forefront as a result of an incident concerning the Brooklyne Tearooms in Sanson.
The tearooms advertised for a new employee. A local woman, Christina Bevan, applied for the job. The initial reaction of the employer was positive. Things changed, however, when the employer met Bevan in person.
Bevan has a moko. Basically, this is a (traditional Maori) tattoo which covers her lips and lower part of her chin.
Bevan alleges that the employer did not like the idea of hiring an employee with a moko. Bevan says that she was told that employees with facial piercings were asked to remove them prior to work - but that the same requirement could hardly be applied to Bevan's permanent facial ornamentation, meaning she couldn’t get the job.
Bevan has made a complaint to the Human Rights Commission. Presumably, she will allege that the employer discriminated against her on a prohibited ground in declining to offer her employment.
The legal issue is a tricky one.
On one view, Bevan's moko is a cultural statement. It has its origins in the Maori culture - and in Bevan's case, the particular design reflects aspects of her ancestry and heritage. Her reason for having the design relates to her desire to make a statement about her cultural origin.
On this view, if an employer discriminated against a moko wearer, he or she would arguably be discriminating on the basis of ethnic or national origin, race, or ethical belief.
The contrary view is that the basis of the employer's discrimination in this particular circumstance had nothing to do with a reservation about the prospective employee's cultural origins - or desire to assert her culture. The reason for not hiring Bevan could conceivably be nothing more than a reservation about the way that she looked - ie facial discrimination - and was consistent with a standard applied to other employees with facial piercings. In other words, it was a genuine occupational requirement that employees look a certain way - which has nothing to do with cultural prejudices.
The point is a difficult one, however, and employers will undoubtedly receive guidance from the Commission's decision.
The Commission's investigation is proceeding.
