One of the most widely read posts here is The Lawyer Look, a polemic against the use of permanent ink, not mention bodily holes, as a means of self-expression by lawyers.  Many of the comments excoriate me as being a closed-minded dinosaur who discriminates against those are “different”.  At least we agree that they are “different”.

The New York Times reports on the continuing saga of the tat people versus the people who have jobs to offer.  One of the problems with getting a tattoo is that it’s a huge commitment, whether viewed as a permanent mark or just one too painful to remove.  So once someone gets tattooed, there is a strong compulsion to then demand acceptance of their choice by others.  Some efforts are quite interesting.

Among the better publicized cases was that of Kimberly Cloutier, a Massachusetts woman who sued for the right to wear her 11 earrings and eyebrow piercings while at work as a Costco cashier. Claiming membership in the Church of Body Modifications, Ms. Cloutier argued her piercings were a form of religious expression. Although she ultimately lost, her case was soon followed by others in Massachusetts and in Washington State.

Mind you, this was a woman who sought the vaunted position of cashier at Costco.  There’s nothing wrong with that job, but it isn’t exactly a life or death position. 

So here’s the message.  It’s not a religion.  It’s not an immutable characteristic.  It’s a vanity.  Do it if you want, even though not everyone will think you are just so cool for having a tat, but be prepared for the fact that you have now marked yourself in such a way that others may disapprove and make assumptions about you, your character, your judgment and your taste.

At one time, tattoos were the domaine of a select few.  Who were they?

A couple of years back you could have narrowed the answer to gang members, prison inmates, members of the Russian mob and the rapper Lil Wayne.

Then young hip people wanted to be cool too, but had the basic sense to place their tattoos in locations where only the chosen few could see them.  Bear in mind, if no one can see it, it doesn’t exist.  But then creep set in.  They creeped above collars and below cuffs.  After all, if no one can see it, it doesn’t exist. 

So now the tats are there, not merely a permanent statement from people who think their skin won’t sag as they age, and that fashions never change, ever, but those who felt the need to show everyone just how cool they were, how counterculture (an interesting concept, given how this is just another in a very, very long line of fads), how hip. 

Defining what the courts in the Cloutier case called a “neat, clean and professional” workplace image becomes more challenging when you consider that in 2006, a Pew Research Center survey found that 36 percent of people age 18 to 25, and 40 percent of those age 26 to 40, have at least one tattoo.

Don’t kid yourself.  The courts were being kind, which they can afford to be considering that there wasn’t a shot in the world that discrimination against tattooed employees was going to prevail.  Tattoos bear no similarity to the classifications protected by Title VII, and they will never, and should never, receive the same protections.

Let’s consider the basic:  People who are born with dark-pigmented skin color have no option (except Michael Jackson) to change it.  People who get tattoos have every choice in the world.  People who are of Hispanic ancestry have no option to change it.  People who get multiple piercings are making a fashion statement.  People who are born with female genitalia don’t get to pick their sex.  People who mutilate their body for a fee have chosen to display themselves to others in a light that they think is brilliant.  No problem, but then be a big boy or girl and live with the consequences.

The pervasive response from the young set is that they don’t see anything wrong with it.  Of course you don’t.  If you did, you wouldn’t do it.  Or you’re suffering from the Stockholm Syndrome, and are psychologically prevented from rational thought by your captive body.

But the Texas Tornado, Mark Bennett, himself a victim of a youthful indiscretion, made the point with great clarity.  As lawyers, we do not stand in court on our own behalf, but on the behalf of others.  The reality that others (whom we will call judge and jurors) will view tattoos and piercings as a negative reflection of the person.  You can argue this point all you want.  Tough nuggies.  You don’t get a vote on how other people see you.  If you don’t understand this, it well explains how you ended up with a daffy duck tattoo on you forehead. (But it’s cuuuuuuute.)

So tat yourself up all you want.  Put holes into any body orifice that needs a hole that nature didn’t see fit to provide on her own.  But you have no business foisting your personal choices onto a defendant, opening him or her to a biased jury because you are so caught up with your personal desire to be sexy and rebellious. 

You can do as you please, but you will not find a place in the well next to me if you chose to put your ego ahead of your duty. 

And, since I so enjoy this picture, here’s our happy tat customer redux.

“I hate magnetometers.  I really, really do.”