Regulating matters of appearance: tattoos and other body art.

The often-used phrase "the more things change, the more things stay the same" aptly describes an issue that has faced law enforcement managers for generations--what may be done to regulate the appearance of police officers in their command. In 1976, the U.S. Supreme Court addressed the issue of policies concerning hair length for police officers, ruling that such policies did not violate constitutional rights of officers. (1) Today, not only are hair length and style an issue but individual expression in other forms, such as tattoos and body piercings, can present similar challenges. This article explores the legal issues related to regulating the appearance of police officers by analyzing the 30-year-old case, Kelley v. Johnson (2) and its continued relevance for law enforcement managers in light of the more recent phenomena of "body art."

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In Kelley v. Johnson, (3) the Supreme Court upheld the constitutionality of regulations describing the length and style of hair appropriate for police officers. In so doing, the Supreme Court declared that police administrators should be afforded great deference in enacting regulations governing the appearance and professionalism of officers under their command. In assessing the constitutionality of such regulations, the Supreme Court held that such regulations should be examined to determine if a "rational connection" between a legitimate government objective and the regulation exists. (4) The Court concluded that the hair length and style regulation at issue accomplished at least two governmental objectives. First, the regulation enhanced recognizability of officers to the public, and second, it fostered a sense of esprit de corps and solidarity within the officer population, thus improving the overall effectiveness of the department. (5)

As stated by the Supreme Court in Kelley v. Johnson:

  The overwhelming majority of state and local police of the present day
  are uniformed. This fact itself testifies to the recognition by those
  who direct those operations, and by the people of the States and
  localities who directly or indirectly choose such persons, that
  similarity of appearance in police officers is desirable. The choice
  may be based on a desire to make police officers readily recognizable
  to the members of the public, or a desire for the esprit de corps
  which such similarity is felt to inculcate within the police force
  itself. Either one is a sufficiently rational justification for
  (grooming and appearance) regulations. (6)

This deferential standard is exemplified in Rathert v. Village of Peotone. (7) In this case, the Seventh Circuit Court of Appeals upheld a department's decision to prohibit male officers from wearing ear studs on and off duty. In Rathert, two male officers brought a lawsuit under Title 42, Section 1983, U.S. Code ([section]1983), alleging a violation of their constitutional rights to liberty, due process, and freedom of association after they were disciplined for refusing to remove their ear studs at the direction of the chief. While the department did not have a policy specifically addressing ear jewelry, the chief claimed that the ear studs violated departmental standards requiring the officers to remain neat and well-groomed. According to the Peotone police manual, officers were required to respond when called upon whether or not they were on active duty and be available 24 hours a day. (8)

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In rejecting the officers' contentions that their due process rights were violated, the Seventh Circuit Court of Appeals ruled that while the "choice of appearance is an element of liberty," (9) the chief articulated a sufficient rational basis for prohibiting the wearing of ear studs by male officers on and off duty. Referring to the Supreme Court's decision in Kelley, the Seventh Circuit Court of Appeals noted that either of the justifications articulated by the Peotone chief, recognizability as police officers or promoting uniformity and esprit de corps, supported the conclusion that the prohibition on ear studs furthered a legitimate government interest. (10)

The circuit court similarly rejected the officers' contentions that their First Amendment rights of association and expression were violated. The officers failed to identify any political, religious, cultural, or other reason for wearing their ear studs. As stated by the court:

  Plaintiffs' justification for wearing the ear studs is merely that
  they "want to" and "for fashion." Those reasons would be enough for
  members of the public to wear ear studs, but not for police officers
  who work for the public. (11)

Of course, the unique factual context of this case is worth noting. The Village of Peotone at the time was a small community with a population of less than 5,000; the village employed a small police force and, as testified to by the chief, members of the community would recognize police officers whether they were on or off duty. (12) Nonetheless, it is illustrative of the great deference afforded law enforcement managers in addressing issues relating to appearance and professionalism.

The deferential standard typified above remains good law. However, the practical impact of the Supreme Court's decision in Kelley remains in a constant state of flux given the changing ways and demographics of society. Remaining constant are concerns about appearance, uniformity, and professionalism within police agencies. The changing ways of society in the form of individualized expression and the ever-increasing diversity within communities may clash with a law enforcement manager's belief regarding the appropriate image for police officers. In addition, some cases may raise constitutional issues relating to religion and claims of religious discrimination complicating the implementation and enforcement of grooming regulations.

Personal Freedom, Public Service, and the Constitution

Since 1985, the Hartford, Connecticut, Police Department has had a grooming and appearance regulation that vests the chief with authority "to order personnel to cover tattoos that are deemed offensive and/or presenting an unprofessional appearance." (13) In October 2002, a Hartford police officer wrote a letter to the president of the Hartford Police Union, copies of which he sent to the chief and other officials, expressing concern over spider web tattoos displayed on the forearms of a few officers, commenting that it is well-known that "the tattoo symbolizes race hatred of nonwhites and Jews." (14) The chief looked into the matter, including reviewing research material from the Anti-Defamation League relating to hate-based organizations, and determined that there was sufficient information to support the conclusion that the spider web tattoo was an extremist hate symbol. Subsequently, the chief disseminated an internal memorandum that identified the spider web tattoo as offensive or unprofessional and ordered all officers to cover the tattoo while on duty or in a Hartford Police Department uniform. (15) The plaintiffs complied with the chief's directive but brought a [section]1983 lawsuit alleging a violation of their constitutional rights, specifically their right of expression under the First Amendment and equal protection, given that other officers had visible tattoos but were not required to cover them.

First Amendment Freedom of Expression Challenge

With respect to the First Amendment claim, the plaintiffs eventually withdrew their argument that the tattoo was intended to convey a message and, thus, was expressive conduct. (16) The court noted that even if the officers did not withdraw this argument, they would have faced significant legal obstacles if they attempted to blanket their tattoos with protection under the First Amendment. The court commented that tattoos are generally regarded as personal self-expression and not the type of speech or expressive conduct that would warrant First Amendment protection. (17)

Riggs v. City of Fort Worth (18) raises similar concerns with respect to tattoos and the First Amendment. In this case, a police officer who worked bike patrol was ordered to wear long sleeves and pants to cover his extensive tattoos after the chief concluded that they detracted from a professional image. The dress code set forth in the department's general order handbook did not contain a provision specifically addressing tattoos. The police officer was reassigned from bike patrol, which he contended amounted to a demotion, after suffering from heat exhaustion, which he attributed to the need to wear heavier clothing to cover his tattoos. He argued that his tattoos should be protected under the First Amendment given that at least a few of them, such as his tattoo of Celtic tribal designs, were an expression of his ethnic heritage. (19) The court rejected his assertion that this elevated the tattoo to something beyond a form of self-expression, but continued by stating:

  Even assuming that tattoos were found to be speech protected by the
  First Amendment, it would appear that [the Chief's] uniform policy as
  applied to the Plaintiff would survive even the stricter standard for
  reviewing restrictions on government employee speech promulgated by
  the Supreme Court.... (20)

Accordingly, even if the tattoos were cast in a light that favored treating them as speech within the meaning of the First Amendment, the court concluded that they would not be deemed speech amounting to a public concern as required to be established by a public employee. (21) Rather, the tattoos would be regarded as a personal form of self-expression.

Equal Protection Challenge

Personal appearance policies allowing for the exercise of discretion on the part of the decision maker open the door to complaints that the discretion was exercised in a discriminatory manner. The decision thus may be challenged on the basis that the individual impacted by the decision was denied equal protection as guaranteed by the Fourteenth Amendment to the Constitution. (22) To make out an equal protection claim, the individuals claiming discrimination must show that 1) they are members of a protected class; 2) they were similarly situated to members of the unprotected class; and 3) they were treated differently than the members of the unprotected class. (23) In addition, even if all three of these can be established, the individuals claiming discrimination must also demonstrate that the difference in treatment was based on some protected criteria, such as race, ethnicity, gender, or religion. (24)

In Riggs, for example, the plaintiff asserted that he was denied equal protection given that other officers with visible tattoos were not ordered to cover their tattoos. The officer in Riggs further argued that as his tattoos were a form of expression tied to his ethnicity, they should be regarded as a form of expressive conduct afforded greater protection under the Constitution. Accordingly, he argued, the department must demonstrate that there is a compelling reason for treating him differently than other officers with visible tattoos. (25) The federal district court judge denied his equal protection claim, concluding that because the tattoos were merely personal expressions and not speech or expressive conduct within the ambit of the First Amendment, the department only must demonstrate that its decision with respect to the plaintiff was rationally related to a legitimate government interest, as opposed to surviving a higher level of judicial scrutiny, compelling interest. In other words, the department only must articulate some minimal level of justification for treating the plaintiff differently than other members of the police force with visible tattoos. (26)

Similarly, in Inturri v. City of Hartford, the officers ordered to cover their tattoos argued unfair treatment in violation of the equal protection clause. The officers conceded that they were not members of a protected class for purposes of challenging the department's decision. However, they asserted that a higher level of judicial scrutiny beyond rational basis--an intermediate level of judicial scrutiny--should be applied given that their right of personal appearance is implicit within fundamental constitutional rights. (27) Under this level of judicial scrutiny, the government as an employer would have to show that its decision is substantially related to an important government interest. (28) The court rejected this argument, citing the long line of case law originating with Kelley v. Johnson, (29) upholding the right of public employers, particularly law enforcement employers, to regulate the appearance of its employees based only on a legitimate, nonarbitrary reason for the regulation. In defense of its decision, the Hartford police chief in Inturri identified legitimate, rational reasons for his concern that the spider web tattoos negatively could impact police relations among the officers within the department, as well as impact relations with the public, especially minority groups. (30)

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Implicating Religious Practices and Beliefs

The deference afforded law enforcement managers to regulate appearance is impacted by protections afforded religious practices and beliefs under the First Amendment and Title VII of the Civil Rights Act of 1964, prohibiting discrimination on the basis of religion. (31) Attacks on the enforcement of a grooming or appearance regulation on the grounds that it impacts freedom of religion may trigger the application of a higher level of judicial scrutiny than that applied normally (rational basis). Application of a higher level of judiciary scrutiny requires the employer seeking to defend the decision to enforce the regulation to demonstrate that the regulation furthers a compelling governmental interest and that the accommodation of the religious expression would pose an undue hardship for the employer.

For example, in Francis v. Keane, (32) correctional officers challenged discipline levied against them after they refused to cut their hair pursuant to the agency's grooming policy. The officers asserted that the discipline violated their rights under the First Amendment as they wore their hair in modified dreadlocks because of their Rastafarian beliefs. The court denied the department's motion for summary judgment, allowing the case to move forward. In denying the government's motion, the court concluded that the employer failed to articulate a sufficient reason for its enforcement of the grooming regulation, only providing generalized claims about the need for the appearance and grooming regulation and did not "demonstrate, with any specificity, how it is that requiring plaintiffs to cut their hair advances asserted interests in safety, discipline and esprit de corps." (33) Because of the First Amendment implications in this case, the government was required to demonstrate a more persuasive case for the enforcement of the grooming regulation. (34)

In Cloutier v. Costco Wholesale Corp., (35) the Federal Appeals Court for the First Circuit Court of Appeals granted Costco's motion for summary judgment after concluding that it sufficiently demonstrated that requiring it to accommodate its former employee's request for an exemption from its policy prohibiting employees from wearing facial jewelry when in positions in which they are required to interact with the public would pose an undue hardship to Costco. The plaintiff in this case worked for Costco for a period of time uneventfully until Costco began enforcing its no-facial-jewelry policy and she was told to remove her facial jewlery. She refused, indicating to management that she was a member of the Church of Body Modification and her piercings are a part of her religion. The plaintiff was eventually fired for refusing, at a minimum, to cover her piercings or remove them. After mediation before the Equal Employment Opportunity Commission (EEOC) led to a finding that Costco had engaged in unlawful religious discrimination, the plaintiff filed suit, alleging a violation of Title VII of the Civil Rights Act. (36)

In granting Costco's motion for summary judgment, the court initially expressed some skepticism as to whether the plaintiff's assertion regarding her facial jewelry was a "bona fide religious practice or belief" as required of her to move forward with her claim of discrimination. (37) Ultimately, the court decided to avoid ruling on whether this was a bona fide religion and assume it was protected under Title VII, concluding that even if the plaintiff did meet her burden of proof on this issue, Costco would still prevail. (38) The court determined that by offering her the option of covering her piercings with a Band-Aid, Costco had met its burden of offering her a reasonable accommodation and Title VII did not require Costco to grant the plaintiff her preferred accommodation, a full exemption from the no-facial-jewelry policy, as this accommodation would pose an undue hardship to Costco. (39) The court acknowledged that Costco had a legitimate interest in presenting a workforce to the public that was professional in appearance and further stated, "[i]t is axiomatic that, for better or for worse, employees reflect on their employers .... [the plaintiff's] facial jewelry influenced Costco's public image, and, in Costco's calculation, detracted from its professionalism." (40)

Conclusion

The composition of today's police departments are arguably more diverse than at any other point in history. Additionally, while society has historically undergone phases with respect to individual style and appearance, it is perhaps more mainstream than at any other point in history to use "body art" to express oneself. In the middle of this cultural tide are law enforcement administrators who seek to retain some semblance of uniformity and professionalism in appearance in what remain largely paramilitary organizations. How this balance is struck includes not just legal considerations but other considerations as well, such as the need to continue diversifying the workforce, morale within the department, and a recognition of the changing attitudes toward individual expression. That being said, the legal principles first announced by the U.S. Supreme Court in 1976 remain intact. Grooming and appearance standards still are permissible and enforceable provided they further legitimate governmental interests and appropriately balance the rights of individuals with departmental interests when such policies impact religious practices and beliefs.

Endnotes

(1) Kelley v. Johnson, 425 U.S. 238 (1976).

(2) Id.

(3) Id.

(4) Id. at 247. "The hair length regulation ... must be ... considered in the context of the county's chosen mode of organization for its police force.... Choice 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 assigned to protect other aims within the cognizance of the State's police power." Id. at 246-247.

(5) Id. at 248.

(6) Id.

(7) 903 F.2d 510 (7th Cir. 1990), cert. denied, 111 S. Ct. 297 (1990).

(8) Id. at 513.

(9) Peotone at 515, quoted in Pence v. Rosenquist, 573 F.2d 395, 399 (7th Cir. 1978).

(10) Peotone at 516.

(11) Id. at 517.

(12) Id. at 514.

(13) Inturri v. City of Hartford, 365 F. Supp. 2d 240 (D.Conn. 2005), aff'd, 165 Fed. Appx. 66 (2d Cir. 2006) (not published), quoting Hartford Police Department General Order 6-15, Section III. C.5. This order was revised in 1999 to read "Tattoos that are visible to the public and deemed offensive and immoral, or presenting an unprofessional appearance, as deemed by the Chief of Police, shall require the officer to cover said tattoo with a bandaging type of material or a long sleeve shirt in accordance with the Uniform of the Day Standards." Inturri at 244.

(14) Inturri at 215.

(15) Id. at 245.

(16) Id. at 248.

(17) Riggs v. City of Fort Worth, 229 F. Supp. 2d 572 (N.D. Texas 2002); Stephenson v. Davenport Community School District, 110 F.3d 1303 (8th Cir. 1997).

(18) 229 F. Supp. 2d 572 (N.D. Tex. 2002).

(19) Riggs at 581, FN 11.

(20) Id. The court refers to the balancing of interests test promulgated in Pickering v. Board of Education, 391 U.S. 563 (1968) and the threshold requirement that for public employee speech or expressive conduct to be protected, it must touch on a matter of "public concern" announced in Connick v. Myers, 461 U.S. 138 (1983), for support for its conclusion that the First Amendment does not support the police officer's argument that his tattoos should be protected under the First Amendment. The Supreme Court's more recent clarification of what amounts to speech on a matter of public concern further bolsters the court's conclusion. See City of San Diego v. Roe, 125 S. Ct. 521 (2004).

(21) In Riggs, the court also cited in support of its conclusion the decision in Daniels v. City of Arlington, 246 F.3d 500 (5th Cir. 2001). In Daniels, a police officer was fired after he refused an order to remove a cross pin from his uniform lapel. The court rejected the officer's contention that the wearing of the pin constituted speech on a matter of public concern, instead, concluding that it was merely a "symbolic conveyance of his religious beliefs" and "intensely personal in nature." Riggs, infra 16, quoted in Daniels at 503-504.

(22) The Fourteenth Amendment to the Constitution reads, in part, that "no state shall ... deny to any person within its jurisidiction the equal protection of the laws."

(23) City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 438 (1985) (Equal protection is "essentially a direction that all persons similarly situated should be treated alike."); Village of Willowbrook v. Olech, 528 U.S. 562 (2000).

(24) Id.

(25) Riggs at 579.

(26) Id. at 582. In a declaration provided by the chief, the chief stated, "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." Id. at 582, quoted in Mendoza Aff. at 3.

(27) Inturri at 250, citing Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).

(28) Riggs at 249, citing Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980); United States v. Virginia, 518 U.S. 515 (1996).

(29) 425 U.S. 238 (1976); infra at 17.

(30) Inturri at 252.

(31) 31.42 U.S.C. [section]2000e-2(a).

(32) 888 F. Supp. 568 (S.D.N.Y. 1995).

(33) Id. at 578.

(34) See also, Fraternal Order of Police Newark Lodge 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999) (Circuit court enjoined the department from enforcing the department's no-beard rule against two Muslim officers who argued that they were unlawfully discriminated against given that the department recognized a medical exemption from the no-beard rule but failed to articulate a sufficiently compelling reason as to why it could not recognize a religious exemption. The court stated "[t]he medical exemption raises concern because it indicates that the Department has made a value judgment that secular [i.e., medical] motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.... We are at a loss to understand why religious exemptions threaten important city interests [such as ready identification of police officers, safety, morale and esprit de corps], but medical exemptions do not." Id. at 366-367). But see, Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001) (clean-shavenness was demonstrated to be a legitimate occupational qualification and as long as the employer's requirement is not directed at religion, enforcing the policy is not an unlawful discriminatory practice).

(35) 390 F.3d 126 (1st Cir. 2004).

(36) Id. at 130.

(37) See Cloutier v. Costco Wholesale, 311 F. Supp. 2d 190, 199 (D.Mass.2004).

(38) 390 F.3d at 130.

(39) Id.

(40) Id. at 135.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By LISA A. BAKER, J.D.