motherBy Gerald L. Maatman Jr. and Christina M. Janice

In a recent order in Medici, et al. v. City of Chicago, Case No. 15 C 5891, 2015 WL 6501153 (N.D. Ill. Oct. 27, 2015), Judge Charles P. Kocoras of the U.S. District Court for the Northern District of Illinois dismissed a class action brought by three City of Chicago police officers who alleged that a new Chicago Police Department policy requiring on-duty officers to cover personal tattoos violated the officers’ First Amendment rights.

This opinion is instructive for public and private employers formulating and enforcing uniform and dress code policies.

Case Background

On June 8, 2015 the Chicago Police Department (“CPD”) revised its uniform policy to require on-duty officers to cover tattoos on their hands, face, neck, and other areas not covered by clothing, with skin tone adhesive bandages or tattoo covers. Id. at *1.  Three CPD officers, Daniel Medici, Dennis Leet and John Kukielka (“Plaintiffs”), had religious tattoos, and Medici also had a tattoo relating to his service as a U.S. Marine. Plaintiffs filed their complaint on July 2, 2015, against the City of Chicago (“City”), alleging the City had violated 42 U.S.C. § 1983 by infringing on their First Amendment rights to display their tattoos.  Plaintiffs also complained that the new tattoo policy required them to wear additional clothing or adhesives that subjected them to overheating, skin irritation, and discomfort. Id. Plaintiffs sought class certification, a declaratory judgment that the tattoo policy was unduly broad and violated the First Amendment, and an award of attorneys’ fees, costs, and other appropriate relief. Id.

The City moved the Court to dismiss the complaint as a matter of law, arguing that the Court could dismiss the complaint without any discovery because Plaintiffs had articulated in their complaint the City’s interest in “promot[ing] uniformity and professionalism” in adopting the tattoo policy. Id. at *2.

The Court’s Decision

The Court agreed with the City that the Plaintiffs, by including in their complaint a statement of the City’s interest in the tattoo policy, afforded the Court the factual allegations sufficient to scrutinize the tattoo policy under two prevailing First Amendment “balancing tests” articulated by the U.S. Supreme Court in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), and United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), respectively. Applying in turn each of the “balancing tests” in these public worker cases, the Court found that the City’s tattoo policy does not violate Plaintiffs’ First Amendment rights. Id. at *3.

The Court focused primarily on the Pickering test, which it reasoned requires “that a restraint on government employee speech must ‘arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest[s] of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,’ [internal citations omitted].” Id. at *2. The Court found that the tattoos were not a form of speech on matters of public concern, but a form of personal expression: “[w]hen an individual decides to place a symbol, a set of words, or a design on his or her body, he or she is engaging in a form of personal expression, rather than a form of commentary on the interest of the public.” Id. at *3.

Further, the Court observed that on-duty police officers “are not part of the citizenry at large, but instead government employees, whose speech may be subject to restrictions that, if applied to the general public, may be unconstitutional.” Id. Even assuming Plaintiffs were citizens commenting on matters of public concern, the Court found that the City’s interests would outweigh Plaintiffs’ First Amendment interests. Reasoning that police officers “have the difficult responsibility of ensuring public safety and maintaining order among the populous,”  the Court reasoned that tattoos may undermine the CPD’s ability to maintain the public’s trust and respect, and negatively impact the CPD’s ability to ensure safety and order. Id.  This was so, the Court explained, because tattoos, as symbols, can be easily misinterpreted and “cause members of the public to question whether allegiance to their welfare and safety is paramount.” Id. at *3-4.  Accordingly, the Court found no First Amendment violation under Pickering.

The Court further determined that the balancing test articulated in NTEU wholly disfavored Plaintiffs, as the Complaint failed to demonstrate: (1) that the speech took place outside the workplace; (2) that the speech addressed public concerns; (3) that the restriction upon speech was a wholesale deterrent to a broad category of expression by a massive number of potential speakers; and (4) that the speech had little if any adverse impact on the efficiency of the workplace. Id. at *4.  Indeed, the Court found that the tattoos “are contrary to and harmful to the CPD’s legitimate objective of maintaining a professional and uniform police force.” Id.

Implications For Employers   

Although the decision in Medici involves public employment and First Amendment concerns, the Court’s reasoning in dismissing the class action is highly instructive to both public and private employers. Employers requiring uniforms or standardized appearance should formulate specific dress code policies that: (1) consider whether and to what extent tattoos are offensive or disruptive in the workplace or to the employer’s customers or business, (2) articulate specific and clear guidelines regarding the display of tattoos; (3) allow for appropriate supervisory discretion – and a standardized process – to consider tattoo restrictions on a case-by-case basis; and (4) consistently enforce their policies.  Care should be taken to engage in a religious accommodation analysis in situations in which the employee’s display of tattoos or other body markings is related to religious practice.