Can Employers Ban Tattoos and Body Piercings in the Workplace?

1 mars 2013

( Disponible en anglais seulement )

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 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 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.

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