Remove that Tattoo or Find Another Job! Third Circuit Reject’s Applicant’s Objections to State Police Pre-Hire Tattoo Review Policy

By Kate Acheson

The Federal Third Circuit Court of Appeals has found a Pennsylvania State Police pre-hire tattoo policy, was properly applied without violating an applicant’s Constitutional rights in Scavone v. Pennsylvania State Police.  Although officially unpublished and not precedent setting, the case deals with an issue of emerging importance.

Ronald Scavone applied for a position as a Liquor Enforcement Officer (“LEO”) with the Pennsylvania State Police (“PSP”).  Prior to Scavone’s application, the PSP instituted a policy that required new applicants to have visible tattoos approved by the Tattoo and Replica Review Committee.   Scavone interviewed and passed a written test for the LEO position, but the Tattoo and Replica Review Committee advised him that he would have to have one of his tattoos removed if he would like to be considered for the LEO position.  Scavone did not remove the tattoo, and was not hired.

Scavone filed suit, claiming the PSP retaliated against him for exercising his First Amendment rights, violated his equal protection rights, and violated his due process rights.  A Pennsylvania District Court dismissed all claims and Scavone appealed.  The Third Circuit affirmed the District Court on all three claims.

First, the Third Circuit found the First Amendment retaliation claim was properly dismissed because Scavone failed to show a causal link between his constitutionally protected conduct and the alleged retaliation.  Scavone claims he engaged in “protected speech,” but this only occurred after the Committee ruled on his tattoos and PSP enforced their tattoo review policy.

Second, the Third Circuit found the equal protection claim was properly dismissed because Scavone failed to show PSP’s tattoo policy was not justified.  Under the traditional equal protection clause analysis used in public employment cases, a rule that does not burden a fundamental right or target a suspect class is upheld if it bears a “rational relationship” to some legitimate end.  The Court found that:

Having a tattoo is not a fundamental right. Nor is the Appellant a member of a suspect class…. Appellant has failed to show that the tattoo removal rule is without a justifiable reason.

Third, the Third Circuit found the due process claim was properly dismissed because Scavone failed to show the tattoo removal policy was impermissibly vague.  Standards for public employees are not vague unless no ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk of discharge.  Here, Scavone was fairly put on notice from the day that he applied for the LEO position that his tattoo had to be approved before he could be hired.