No-Visible Tattoo Policy Upheld by Mass Civil Service Commission

The Massachusetts Civil Service Commission has upheld a no-visible tattoo policy in a challenge brought by an applicant to the Brockton Fire Department. Corey Matchem was bypassed by the Brockton Fire Department in 2019 over his “non-compliance with the department’s Tattoo, Body Piercing and Mutilation Policy for New Hires.”

Matchem appealed that decision to the civil service commission alleging that the policy is discriminatory on its face, violates the First Amendment’s free speech requirements,  and violates equal protection because it only applies to new hires, not existing firefighters.

Quoting at length from the commission’s decision:

• The BFD Tattoo 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 prohibited if they are “visible to public view while wearing any department issued uniform.”
• An applicant who has a prohibited tattoo, brand or mutilation may remove it and be considered for appointment at a future date.
• The BFD also has indicated that, if a candidate removes a tattoo before the hiring cycle has been completed, reconsideration of an applicant may be possible.
• Several other candidates were bypassed based on non-compliance with the BFD Tattoo Policy.
• The BFD proffered examples of similar tattoo policies adopted by the Brockton Police Department, the Lexington Fire Department, the Stoneham Fire Department; and the Massachusetts Department of State Police; Tattoo Policies of the United States Marine Corp, Navy, Army, Coast Guard and Air Force.
• Chief Williams explained that the BFD Tattoo Policy prohibited tattoos on the face, neck and hands and that covering those [markings] would not be acceptable because, in part, that would raise safety issues.
• [Matchem] pointed to the fact that three current BFD firefighters have tattoos, brands or body art of the type that the BFD Tattoo Policy prohibits and BFD has never received any complaints about them from the public.
• Chief Williams acknowledged that current BFD firefighters had non-complying tattoo but offered two explanations for the “new hires only” approach.
• First, he wanted to take a “proactive” approach rather than wait until he got complaints.
• Second, the BFD was party to a collective bargaining agreement with the local firefighters’ union and he was legally prevented from applying the policy to current firefighters who are union members until Brockton engaged in “impact bargaining” with the union.
• Chief Williams intends to expand the application of the BFD Tattoo policy to all BFD members and will place that issue on the agenda in the next round of collective bargaining with the union.
• Mr. Matchem has multiple tattoos, none of which fall into the offensive category that would be strictly prohibited. He has visible tattoos on his face, neck and hands. He also has excessive ear stretching.
• Basic merit principles in hiring and promotion calls for regular, competitive qualifying examinations, open to all qualified applicants, from which eligible lists are established, ranking candidates according to their exam scores, along with certain statutory credits and preferences, from which appointments are made, generally, in rank order, from a “certification” of the top candidates on the applicable civil service eligible list.
• The Commission’s role is to determine whether the appointing authority had shown, by a preponderance of the evidence, that it has “reasonable justification” for the bypass after an “impartial and reasonably thorough review” of the relevant background and qualifications bearing on the candidate’s present fitness to perform the duties of the position.
• Appointing authorities are vested with discretion in selecting public employees of skill and integrity.
• The commission “cannot substitute its judgment about a valid exercise of discretion based on merit or policy considerations by an appointing authority” but, when there are “overtones of political control or objectives unrelated to merit standards or neutrally applied public policy, then the occasion is appropriate for intervention by the commission.”
• The Commission is 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, and 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 the Appellant effectively [asks] us to do, at least so long as the policy does not intrude on constitutional rights, which is not the case here.
• 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.
• As a threshold matter, the question arises whether the BFD Tattoo Policy is properly analyzed under the standards governing the limitations on freedom of speech by public employees, under the line of cases beginning with Pickering v. Board of Educ., 391 U.S. 563 (1968), or whether tattoos are more properly evaluated as adornments to law enforcement uniforms and appearance, governed by the line of cases emanating from Kelly v. Johnson, supra.
• In weighing the rational interest of … agencies to promulgate a broad, preemptive policy under the police power to regulate the appearance of their officers while on-duty and in uniform, it also bears notice, as the BFD Tattoo policy expressly recited, that tattoos involve a very wide range of symbolic images that the bearer may intend to convey one idea, or no idea, but which another person might misinterpret.
• [Matchem] fairs no better under a “free speech” analysis as set forth in Pickering… and its progeny.
• As I concluded above, a law enforcement officer in uniform and on duty does not speak as a “citizen” within the meaning of the first prong of Pickering. See,.e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006)
• Similarly, since there was no actual testimony to explain the matter of “public concern” on which the Appellant’s tattoos were meant to express an opinion, the Appellant fails the second Pickering prong as well. Indeed, by his own admission, many of the tattoos represented his private “self-expression” about his favorite children’s book, his family, or his interest in Star Wars films, a far cry from what is required to establish speech on a topic of “public concern”.
• BFD has met it burden to show a legitimate governmental interest served by the BFD Tattoo Policy, which includes, in particular, the interest in maintaining public trust while serving a vulnerable population, the importance of maintaining good order and discipline, and the public safety issues that preclude allowing a firefighter to cover his tattoos while on-duty and wearing his uniform.
• The Appellant makes what amounts to a “class of one” equal protection argument, asserting that the BFD Tattoo Policy violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because it only applies to new hires and treats similarly situated existing BFD firefighters differently.
• Here, the BFD applied the BFD Tattoo Policy uniformly to all candidates, bypassing several other candidates in addition to Mr. Machen for non-compliance with the policy.
• [W]hile it is true that the policy is not being applied to current BFD firefighters, and several currently employed firefighters have tattoos that do not comply with the policy, the BFD stated a legitimate reason for limiting the BFD Tattoo Policy to candidates only, namely, it is prohibited, for the time being, from enforcing such a policy against current members under the terms of the collective bargaining agreement with the firefighters’ union.
• Indeed, grandfathering a new public safety requirement is a recognized justification for distinguishing among employees under civil service law.

Here is a copy of the decision:

Note: For those who have been through the Drafting & Implementing Effective Fire Department Policies & Procedures class, note how the Commission uses the explanatory material (purpose and policy statements) to uphold the policy. I quote again from the decision: In weighing the rational interest of … agencies to promulgate a broad, preemptive policy under the police power to regulate the appearance of their officers while on-duty and in uniform, it also bears notice, as the BFD Tattoo policy expressly recited, that tattoos involve a very wide range of symbolic images that the bearer may intend to convey one idea, or no idea, but which another person might misinterpret. Many policy drafters fail to include such explanatory material in their policies (the “less in more” school). They are missing an important audience, and an opportunity to speak to those who may stand in judgment of the validity of the policy. In this case the BFD policy gave the Massachusetts Civil Service Commission the additional insight needed to uphold the tattoo policy.