Question: We are updating our tattoo policy and I have been researching any cases that address covering of off-duty tattoos that are offensive, due to being gang-related, sexually suggestive, vulgar, advocate racial, ethnic, religious or sexual hatred or discrimination. This would be for officers that clearly are a representative of a police department (i.e., a subject cutting his grass shirtless, off duty, with a squad car in the driveway, and has a swastika tattoo on his back).
Answer: I don’t know of any cases along the lines you suggest. I just finished writing the eighth edition of The Rights of Law Enforcement Officers and tried to read all police officer labor/employment cases decided in the previous five years. I didn’t see a case about the regulation of tattoos that are not visible on-duty but may be off-duty.
That said, I’d expect some basic principles to apply. For an employer to act in an area that impacts an officer’s off-duty life, it almost always is required to show some nexus to the job. The grass-cutting example you gave would have such a nexus as the public would recognize the officer as a police officer. However, one can imagine all sorts of other tattoos that are not visible on-duty which would be beyond the employer’s ability to regulate. The trick is to write any rules in such a way that you’re focused on actual harm to the employer.
Also, most states hold that grooming codes are a mandatory subject for bargaining and must be negotiated with the union before implementation. I don’t know of any Illinois cases in the area, but the results are pretty uniform elsewhere.
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