Legal Question in Constitutional Law in New York

1st amend

My son was fired for having a tattoo that he had covered. Isn't this a violation of his first amendment rights?

Asked on 11/02/08, 10:23 am

2 Answers from Attorneys

Carlos Gonzalez Gonzalez Legal Associates PLLC

Re: 1st amend

it all depends on the employer, generally most employee/ employer relationships are what is termed 'at will' meaning that any individual can be fired at the will of the employer, so long as the reasons are not clearly discriminatory of a legally protected class/ group... of which tattoo's does not fall into...

for eample, if he was fired for being a minority or gay or being too old, BUT the excuse that was used was the tattoo that would be diffrent and you could have a case... this is usually what happens also, when there is a discriminatory firing - because obviously they wouldnt outright tell you that you were being fired for a discriminatory reason...

much luck, feel free to email for further discussion. or contact us at 212.709.8303

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Answered on 11/02/08, 10:40 am
Warren Markowitz Warren R. Markowitz, Esq

Re: 1st amend

In general, employment in NYS is at-will, there are some contractual or other defined issues but an employer or employee may terminate the relationship without cause at any time for any reason, except those protected by law such as age, sex, etc.

In this instance unless you can establish that the tattoo was political in nature and by terminating your sons employment that he was silencing such protected speech then most likely the answer is no violation of his first amendment rights occurred.

Employers are allowed to set standards as to appearance which reflects how the employees represent the company. If a tattoo, facial hair, piercings, etc are images that the employer does not wish to associate with its company or product then they can fire them for that. But in this case, if it was covered as you stated, you appear to have a difficult situation in establishing that it was the tattoo that was the cause of termination.

If I can be of assistance, please do not hesitate to contact me.

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Answered on 11/03/08, 2:34 pm

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