Fire Department’s Tattoo Policy Upheld

Written on 07/09/2021
Will Aitchison

When Corey Matchem took and passed the written portion of the civil service examination and the entry-level physical examination for the position of firefighter, his name was placed on the firefighter eligible list established by the Massachusetts Human Resources Division (HRD). The HRD acts as the testing agent and clearing house for most Massachusetts public safety employees.

The HRD later authorized the City of Brockton to appoint ten firefighters for the Brockton Fire Department. Matchem’s name appeared on the certification in 15th place, in a tie group with four other candidates. However, the City’s mayor informed Matchem that he found him an unsuitable candidate who was “ineligible for employment by the Brockton Fire Department due to your non-compliance with the Department’s Tattoo, Body Piercing and Mutilation Policy for New Hires.”

Brockton’s policy prohibits two categories of tattoos, brands and body art: (1) those which depict offensive subjects, such as racial, sexist or other similar hatred or intolerance, are prohibited, whether visible or not while on duty; and (2) tattoos, brands and body art (tongue splitting, disfiguring ears, nose and lips) on the face, head, neck or hands are if they are “visible to public view while wearing any Department-issued uniform.” Applicants who have a prohibited tattoo, brand or mutilation may remove it and be considered for appointment at a future date.

Matchem has multiple tattoos, none of which fall into the offensive category that would be strictly prohibited. However, he has visible tattoos on his face, neck and hands and has excessive ear stretching. When the City refused to hire him because of his tattoos, he challenged the decision with an appeal to the Massachusetts Civil Service Commission.

The Commission upheld the City’s refusal to hire Matchem. The Commission’s opinion noted that it was “persuaded that the BFD has established, by a preponderance of evidence, that the adoption of the BFD Tattoo Policy is rationally related to legitimate purposes of maintaining order and a uniform and professional image of the BFD that the public will trust and respect, preserving public confidence in the ability of the BFD to maintain public safety and attend to particularly vulnerable and sensitive persons.

“The Commission must give appropriate deference to what a public safety department believes to be necessary to regulate its mission and achieve those goals. The Commission cannot begin to micromanage the application of this policy and substitute its judgment for that of the BFD, as Matchem effectively as us to do, at least so long as the policy does not intrude on constitutional rights, which is not the case here.

“As a general rule, police and fire safety departments, commonly referred to as para-military organizations, are authorized to regulate the appearance and conduct of its members. As shown by the evidence in this appeal and the weight of judicial authority, for reasons of ensuring safety as well as good order and discipline, state and municipal police and fire service officers may be ordered, and are lawfully required, to strictly adhere (from head to toe) to dress codes that require specific uniforms and compel on-duty compliance with standards of personal hygiene and appearance, including limitations on adornment of their uniforms as well as conforming to head and facial hair protocols.

“Tattoos and body art long have been included as the subject of regulation by the Federal military services, the Massachusetts State Police, and numerous municipal police and fire departments for many years. Although tattoos present unique issues and are not completely immune from constitutional scrutiny, as a general rule, the authority of law enforcement agencies to appropriately regulate tattoos and body art that its members (or applicants) chose to embed and display on their bodies is well-established.”

City of Brockton (Matchem), Case No. G1-19-234 (Mass. CSC 2021).

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