Summer is Here – Body Art at the Workplace: Employer and Employee Rights

As temperatures soar, employers and employees alike will be rolling up their sleeves, unbuttoning their collars, or perhaps showing off some leg at work, depending on the workplace and its culture.

Once upon a time, we puzzled over the matter of dress codes at work. Could employers prohibit shorts at work? Could they require that women wear stockings? Are bare shoulders appropriate at the office?

Now, the often fraught matter of our appearance at work must consider “body art” as well.

Body Art

According to recent research, nearly half of millennials have a tattoo. They are no longer the mark of “sailors, stevedores, and strippers”, as an arbitrator remarked in a 2013 decision overturning an Ottawa hospital’s proposed dress code that imposed strict regulations on body art. Far from being seen as dirty, or even edgy, tattoos are positively mainstream. And they’re no longer hidden away on a shoulder blade or hip, often visible outside of even modest clothing. Facial piercings have likewise become far more common.

Many view tattoos and piercings as art, or a form of self-expression. Those who don’t care for it certainly aren’t surprised by it anymore.

In some workplaces, like a hip new restaurant or bar, having body art might be encouraged. In others, however, a more traditional appearance is still preferred. While the managing partner of a law firm may expect half of the new associates to be inked or pierced, showing off tattoos at meetings with clients may not be desired.

This raises a whole host of new questions. Can an employer reject an applicant who has visible body modifications? Can an employer ask an employee to cover up a tattoo or remove a piercing at work?

Canada’s Charter of Rights and Freedoms and Ontario’s Human Rights Code do not currently apply to employers’ hiring choices with regard to body modifications. An employer has every right to decline to hire someone because he or she is tattooed or pierced. Our human rights legislation does, however, protect body modifications associated with an ethnic, religious or tribal custom. Therefore, a fire department cannot discriminate against a Sikh because he has a beard, but a bank manager can choose not to hire a young woman with pink hair and a septum piercing.

Once an employee is hired, employers have less leeway in this regard. Employers are generally entitled to set the rules of their workplace; however, these rules must be associated with a legitimate business interest.

While courts have allowed employers to impose dress codes that are reasonable and do not discriminate against or sexualize their employees, they have been reluctant to allow employers to regulate matters of appearance that are more permanent. Obviously, a “no shorts” rule is less onerous than a “no tattoos” or even “no beards” rule.

In the aforementioned case of the Ottawa hospital, the arbitrator held that the policy – which required all staff to cover up all “large” tattoos and remove “excessive body piercings” during their shifts — was an “unreasonable infringement on employees’ rights to express themselves in their appearance”. While noting that tattoos and piercings are not protected under human rights law, he held that the evidence was that many of the employees regarded those aspects of their appearance as an important part of their identity. The arbitrator also found no evidence to support the hospital’s claim that patients are less comfortable with tattooed and heavily pierced healthcare workers and that this could lead to negative health incomes.

This decision was consistent with the 2011 judgment of an arbitrator who struck down a policy implemented by the Ontario Provincial Police ordering officers to cover up visible tattoos, on the basis that it was too broad to be enforceable, and the 2009 ruling of a Quebec judge that a daycare’s blanket prohibition on visible tattoos was unreasonable.

In the latter of those cases, the judge did acknowledge that the daycare could reasonably prohibit tattoos that were inappropriate for children. While a blanket prohibition on visible tattoos might be overbroad and unenforceable, it is fair for employers to require employees to cover tattoos that depict graphic violence or hateful messages.

How Minken Employment Lawyers Can Help

Employers need to ensure that any policy governing workplace appearance does not overstep. A dress or body modification policy should never apply to things associated with religious or ethnic beliefs, like a turban or bindi. Any policy should be applied consistently across employees in similar roles, and it must serve a legitimate business purpose. If you’re an employer who wants to implement a dress code policy that includes body art, we encourage you to seek our guidance.

Likewise, if you’re an employee who feels that you’ve been unfairly treated because of your body art, or asked to cover up, we encourage you to seek legal advice so that you understand your rights.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. If you have any questions please contact us or call us at 905-477-7011. Sign up for our newsletter to receive up-to-date Employment Law information, including new legislation and Court decisions impacting your workplace.

Please note that this article is for informational purposes only and does not constitute legal advice.

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