1. Is it possible that the company asks the worker to cover their visible tattoos during the workday?
The employer's power to regulate the employee's physical appearance, such as the display of visible tattoos during the work day, is not unrestricted, so this power is limited, among others, by the right to dignity and the employee's fundamental rights. Therefore, it is not possible to generically establish that workers must cover their tattoos while they are working.
However, the employer may require employees to cover visible tattoos totally or partially during the work day when it is duly justified and does not disproportionately affect the worker's rights. Regarding said employer power, the Constitutional Chamber, in a recent opinion, through resolution no. 4214-2023 at 1:15 p.m. on February 22, 2103, has established the following:
"the issuance of mandatory provisions regarding the clothing and physical appearance of workers or officials, which may be justified on reasons such as occupational health, health regulations, integrity of the raw materials or the product in the production of which the worker participates, or either for corporate image, for example, in the event that workers are in contact with clients or the public (…) In order to weigh the rights involved, on the one hand, of the employer or employer to the proper functioning of the company or institution, and fundamental rights of workers, the "trial or test of proportionality" must be applied (Res no. 2023-4214, Constitutional Chamber of the Supreme Court of Justice)
Regarding the proportionality trial, which the employer must carry out to determine whether the measure it intends to adopt is suitable, necessary, and proportional so that it does not unreasonably affect the fundamental rights of the worker, the same Constitutional Chamber has detailed that :
"The judgment or test of proportionality is valid to determine, in each case, whether the measures applied are proportionate or not in each situation and thereby avoid unnecessary or disproportionate excesses to the detriment of the rights of the other and should be used, only, those restrictions necessary to obtain a legitimate purpose, there being no more benign alternative with the fundamental right in question. Then the employer's provision that restricts the worker's fundamental rights will be necessary and proportionate only when there is no less burdensome means of achieving the desired objective. Also, the partial judgment of proportionality has also been called the "principle of indispensability", in the sense of evaluating whether the employer's measure is indispensable for the achievement of an end, which must in all scenarios be legitimate, in accordance with the Law of the Constitution" (Res no. 2023-4214, Constitutional Chamber of the Supreme Court of Justice)
In the ruling we are commenting on, it was analyzed whether or not the provisions of point 2.2.2, paragraph d), of the so-called "Appearance Guidelines", of the regulation "Personal presentation and image provision", approved by the General Management of the ANDE Fund, were constitutional or not.
The rule that was challenged in point 2.2.2 ("Female gender"), paragraph d), established:
"Tattoos and piercings or sparks: The worker who uses this type of accessories must cover the exposed areas with tattoos, as well as not wear the piercings or sparks during the work day."
Those who filed the unconstitutionality action maintained that the previously described norm is unconstitutional because it transgresses the rights of personality, enshrined in article 24 in connection with article 28, both of the Political Constitution.
From the text of the majority vote, it is essential to highlight the following arguments that were useful in determining the constitutionality of the challenged norm:
- When the employer requires that the employee cover their tattoos during working hours, said requirement must necessarily be based in advance on a verifiable business need or interest, which will be part of the proportionality and the equitable evaluation of rights in conflict. - There is a legitimate interest of the employer when "the exposure of tattoos to third parties, the public or clients, could lead to, or translate into, a negative impact or counterproductive effect." Likewise, in this analysis of the business impact, it is necessary to consider "the type of activity and service offered by the employer, target market, as well as behavioral patterns that the employment relationship establishes." - The employer is empowered to limit the exposure of visible tattoos during work as it is a reasonable means to carry out their productive activity when the design involves a transgression "to the common rules of morality and good customs prevailing in a certain time and space, or when they are contrary to the values and ideals that the employer seeks to project." On the contrary, the employer is not empowered to force the worker to cover visible tattoos when "they do not violate those values or do not generate a negative impact on the economic interests or activity of the employee." - Requesting in a generic manner that the worker cover their tattoos during the work day and without considering the evaluation parameters previously described violates articles 24 and 28 of the Constitution, which entails an illegitimate and discriminatory practice. Consequently, it is necessary that in each specific case, the employer assesses whether the exposure of the worker's tattoos violates the objective evaluation parameters. - It is expressly provided as an example of what would be considered images that violate universal morality and good customs, those tattoos alluding to "explicit sexual images in the educational field of minors, or graphic representations of violence of gender, discrimination for various reasons, xenophobia, homophobia."
Considering the above, the Constitutional Chamber determines that the challenged norm is constitutional, provided that it is interpreted in the sense that before the requirement in each specific case to cover the exposed areas with tattoos, the employer bases said restriction taking into account reasonable reasons (such as the tattoo violating universal morality, good customs, the image and values of the employer, among others) and this has been communicated in writing to the affected person.
2. Could the worker claim discrimination if he is asked to cover his tattoos?
Eventually, the worker could allege a violation of the right to free development of personality and the right to identity, especially when covering tattoos during the work day does not constitute a reasonable and proportional means according to the evaluative criteria previously described, as it could be that the tattoos do not violate the universal morality and good customs of the rest of the workers, clients, suppliers or the general public and/or that their exhibition could not generate a negative impact on economic interests, corporate image or employer's business activity.
The above is relevant because concepts such as "universal morality" and "good customs" are indeterminate and broad criteria, so classifying a visible tattoo as contrary to them would not be exempt from generating possible lawsuits or claims.
Likewise, those reasons that support the decision for the worker to cover his visible tattoos during the work day are those that the company would eventually have to demonstrate in a lawsuit or administrative claim in which the reasonableness of the decision made is questioned or whether it is discriminatory in nature.
3. Can the company sanction workers' failure to cover their tattoos?
Employees who must cover their visible tattoos during the work day could only be sanctioned once the company has determined this need according to the evaluation parameters previously described and the worker has been informed in writing about said requirement.
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