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A tattoo makes its mark in staff dispute

THE DOMINON POST - MONDAY, 31 October 2011

Readers will have seen the array of tattoos displayed by rugby players during the Rugby World Cup. There was no instruction for them to cover up in the way that Claire Haupini was asked to cover up her tattoo by her employer last year.

Claire Haupini was employed by the Spit Roast Catering Company (SRCC) in Auckland. Claire was employed to help prepare for functions, to set up, serve and tidy up afterwards. It was a ‘frontline’ role, in the sense that Claire and her colleagues at any function were in direct contact with SRCC’s clients; they were in effect the face of the company.

On 17 May 2010 Claire was employed for a “top end” function, according to her manager Mr Peet, a Director.

Claire had a moko on her left forearm. The moko was described as being “fiercely Maori” but also as representing “elements of the Aotearoa New Zealand visual landscape that we encounter every day”.

Before the vans left the SRCC yard on 17 May to go to the function venue, Mr Peet noticed that Claire was wearing a company shirt with short sleeves, which rendered the whole of her moko visible. He felt that company staff should not be displaying what he described as a large, prominent tattoo at the function, a corporate event for an important client.

He asked SRCC’s operations manager, a Mr Brough, to discuss the matter with Claire and see if she would mind wearing a shirt with longer sleeves to cover the tattoo.

Mr Brough asked Claire politely if she would mind wearing a different shirt, to cover her tattoo. He did this without in any way denigrating her tattoo. He explained that it was not a direction, and that if she had any concerns he would take them back to Mr Peet.

Claire said she was stunned when she was asked to change her shirt. However, despite her inner feelings, she agreed to change it. Mr Brough then provided a different shirt and Claire changed into it before leaving with other staff.

Following the event, Claire said she felt angry, distressed and humiliated at the request to cover up her moko. Some but not all of her co-workers witnessed that she was upset during the day, and understood why.

Claire did not make it known to Mr Brough or Mr Peet however that she was upset. As far as they knew she was happy to change her shirt. Before the end of the day Claire was asked if she wanted to work again in the coming weekend. She declined but did not signal that it was due to her distress.

Claire went home and found a website for the Human Rights Commission. The next day, she made a complaint to the Human Rights Commission that she had been a victim of racial discrimination and harassment, in that she had been ‘singled out’ when asked to wear a long-sleeved shirt to cover her moko.

The Human Rights Commission in a detailed decision said that SRCC had not discriminated against Claire on the basis of her race and/or ethnic or national origins. The company did not treat Claire differently because she was Maori.

It was clear that SRCC employed other Maori people to work for it and did not ask them to wear longer sleeved shirts. The problem from SRCC’s point of view was not the fact that she was Maori, but the fact she had a tattoo on her forearm. The question then was whether a tattoo can have such a strong affinity with a given race, ethnicity or national origin that it is effectively to be treated as being synonymous with that race, ethnicity or national origin.

Claire argued that a rule against moko is a rule against race, ethnicity or national origin because of the strong connection between the two. The Commission found that Claire’s tattoo did not fall into that category as it was not so clearly evocative and connected to a particular racial or ethnic group that it identified her as being a part of that group, eg Maori. The design Claire wore may have been worn by someone of non-Maori descent, it was accepted. There was also no suggestion that having a moko of the kind Claire had was a requirement or expectation for people of Maori ethnicity.

There was nothing to show that a person of non-Maori descent would not also have been asked to wear a longer sleeved shirt in the circumstances that Claire was asked to cover up her tattoo.

The Commission further looked at whether the actions of SSRC in asking Claire to cover up her moko had a significant disproportionate negative effect on the group said to be disadvantaged – in this case, Maori.

Claire said the requirement to cover up her moko affected her mana. She said that Maori experience the rule as disrespectful of their whakapapa, cultural tradition and custom. She said that a non-Maori person would not experience such detriment as a result of a ‘no tattoo’s’ policy.

The Commission accepted the stated effect on Claire’s mana. However, Claire’s further claims were highly generalised and insufficient evidence was provided to support them. In particular, it was not accepted that people of other cultures and ethnicities could not experience detriment of the kind suffered by Claire.

SRCC relied on evidence from Professor Ngahuia Te Awekotuku who said that non-Maori people who wear tattoos that are emblematic of New Zealand may also be described as having moko, and that such a thing is no less valid for that person than is a moko worn by a Maori person. That helped the employer win the case.

This case lies at the intersection between cultural expectations on the one hand and the reasonable concerns of an employer to be able to manage the appearance of its staff working in a ‘frontline’ role on the other. In New Zealand there is no law prohibiting discrimination against culture. Perhaps if culture were an express ground for discrimination then Claire may have fared better in her claims. Indeed, if Claire had brought a claim for disadvantage in the employment institutions she may also have fared better.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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