Many employers have dress codes as a part of their policy handbook. But what happens when a dress code goes beyond attire, banning employees from displaying body art and piercings during work hours? This week’s blog post explores the issue further, looking at cases wherein dress codes involving tattoos and piercings have been found to be unenforceable by the courts.
Decisions
Professional workplaces have been known to have an issue with employees displaying tattoos and piercings for the fear that the adornments are not aesthetically pleasing and appear unprofessional to their clientele. But is a policy banning the display of body art and piercings legally permissible? Or does it cross the line when it comes to employee rights?
This was the issue in Ottawa Hospital v. CUPE Local 4000, 2013 CanLII 643 (ON LA), wherein a hospital decided to implement a dress code policy which would ban (order employees to cover) “large tattoos” and “visible, excessive body piercings”. One worker was provided with several warnings regarding his display of body art. In the warnings, the hospital noted that “staff are to dress in a manner that portrays a professional image and promotes patient confidence.” The reason for the warning was thus that “tattoos do not further these initiatives.”
The workers affected by the policy filed a grievance against the hospital, noting that the tattoos and piercings were a form of expression and identity and that an order that they are covered was a violation of their rights. The union supported the grievance on the basis that the imposed policy did not meet the criteria for a policy to be enforced within the context of a collective agreement, as outlined in Re KVP Co. Ltd. and Lumber and Sawmill Workers Union, Local 2537 (1965) 16 L.A.C. 73 (Robinson).
The test under Robinson for policy enforceability under a collective agreement is six-prong, and involves factors such as reasonableness, consistency, unambiguity, and clear and consistent application (must be applied to all employees, and employees found in violation must be informed clearly of the recourse should the prohibited action continue). Arbitrator Lorne Slotnick agreed with the union’s submissions that the policy did not adhere to the criteria for enforceability, that the policy was without grounds (it impacted the employees and was not as offensive to patients and hospital image as the hospital had asserted) and found the fact that the policy had been abruptly enforced, as well as inconsistently enforced. He declared the policy unenforceable.
A similar issue arose in Syndicat des travaillueses des centres de la petite enface du Saguenay- Lac-St-Jean-FCSS-CSN c. Girard 2009 QCCS 2581, wherein a worker was again treated differently based on body art. The worker, Nadine Bélisle had a shoulder tattoo which she was told to cover up during her work hours at a local daycare. The matter initially proceeded to arbitration and the request that Bélisle cover up was found to be reasonable in terms of the daycare’s internal policies. However, on appeal, Jean Bouchard j.c.s. of the Quebec Supreme Court disagreed and declared the policy in violation with Bélisle’s rights under sections 3 and 5 of the Charte des droits et libertés de la personne, the Québec equivalent to the Ontario Human Rights Code, R.S.O. 1990, c.H. 19.
Principles
As the decisions above demonstrate, policies banning tattoos and piercings are typically unenforceable. Employees have the right to express themselves regardless of a company’s view of how that expression will impact public and client view of the organization, within reason. The decisions above also highlight that employer concerns regarding how such an expression will impact the public opinion of the company tend to be over-exaggerated and do not apply to the clientele at the level the employer anticipates.
If you are concerned that your personal display of body art or piercings may have been a factor in your termination, contact Monkhouse Law today for a free consultation.
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