Can Employers Ban Tattoos and Body Piercings in the Workplace?

February 2013 | Laura Cassiani

A recent labour arbitration
decision addressed the question of whether an employer can prohibit employees
from having “visible, excessive body piercings” and “large tattoos” while at
work.

At issue in Ottawa Hospital v. CUPE Local 4000 was
whether the employer’s new and comprehensive dress code policy which, amongst
other things, prohibited visible and excessive body piercings and required
employees to cover up large tattoos, was reasonable or whether it represented
an unreasonable infringement on employees’ right of expression. The dress code
policy was applicable to all bargaining unit employees, including nursing and
housekeeping staff, as well as non-bargaining unit staff, contractors and
physicians. 

The prohibitions (along with
the requirement that nursing staff wear lab coats when off their units,
including during their breaks) were the focus of the union’s grievance. 

The employer’s rationale for
banning body piercings and requiring large tattoos to be covered up was based
on improving patient care and ensuring patient confidence. According to the
employer, “at least some patients are put off by health care providers sporting
tattoos and piercings, and that if the hospital can save any patient some
anxiety by requiring employees to cover tattoos and remove piercings, that is a
small sacrifice for the employee.” 

The employer argued that its
priority was improving health outcomes for hospital patients who were described
as largely elderly. According to the employer, “[boosting] the professional
image of employees improves patient confidence, and that improves the quality
of health care.”

The union took no issue with
rules that addressed a health and safety or sanitation concern where there was
supporting evidence.  It also took no
issue with a requirement that “hateful, profane or otherwise offensive” tattoos
be covered up during work. However, the union argued that the employer’s prohibitions
were not based on any objective evidence or legitimate employer need and as a
result represented an unreasonable infringement on employees’ freedom of
expression.

Arbitrator Slotnick was not
persuaded by the employer’s arguments, in large part because he found no
objective or persuasive evidence to establish any link between patient health
outcomes and the dress code prohibitions. 
While Arbitrator Slotnick acknowledged that there may be a segment of the
population who may continue to harbour negative stereotypes against individuals
with tattoos or piercings, he did not accept that there was a “connection
between these feelings and health care outcomes.” 

He also noted that in a ten
year period, the hospital recorded only two “unspecified concerns about
tattoos” from patients, and therefore the employer appeared to be fixing a
problem that did not exist.

According to Arbitrator
Slotnick, in order to determine the reasonableness of the employer’s new dress
code policy, it was necessary to balance the employer’s goal of achieving the
best patient experience possible against employees’ rights as individuals.  Ultimately, he found that a policy predicated
on the stereotypes of a small segment of the population was no justification
for the prohibitions.

As a result, the provisions
of the dress code policy dealing with tattoos and piercings were declared void
and unenforceable.

Lesson for Employers

The decision in Ottawa Hospital v. CUPE Local 4000 has
implications for charities and non-profit organizations that might seek to
maintain a similar policy for their unionized employees.

It is well established that,
in unionized environments, employer-imposed workplace rules must pass the
standard of “reasonableness”. The criteria for establishing “reasonableness” in
this context were set out in the seminal case of Re KVP Co. Ltd. (“KVP”).
According to the KVP criteria, a
unilaterally imposed employer rule must generally be clear and unequivocal,
consistently enforced and not unreasonable. In addition to the reasonableness
test, workplace rules must also comply with the terms of a collective agreement
and any statutory obligations (such as human rights legislation).

In some circumstances, a
dress code policy that imposes significant limits on individual freedom of
expression may be enforceable. In each case, it will depend on what is
reasonable in the circumstances, including a review of the need or concern the
employer is trying to address.  For
charities and non-profit organizations that might seek to adopt such a policy,
it will be important to consider whether the policy is tied to the achievement
of the organization’s purpose and whether it is reasonable in the
circumstances. There may also be human rights considerations that will apply in
some cases. 

Miller Thomson’s Labour and
Employment lawyers can assist in reviewing and advising on workplace policies,
including dress codes.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

Miller Thomson LLP uses your contact information to send you information electronically on legal topics, seminars, and firm events that may be of interest to you. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at privacy@millerthomson.com.

© 2017 Miller Thomson LLP. This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested by contacting newsletters@millerthomson.com.