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Should Employers Be Permitted to Discriminate on the Basis of Appearance?

Originally published on October 14, 2014

An Edmonton woman who says she’s being discriminated against because she has 22 visible piercings is reigniting the debate about workplace dress codes.  Kendra Behringer, 24, complained that one prospective employer threw out her résumé in front of her.

This is the opening of an article in the National Post about employers discriminating against applicants and employees based on piercings, tattoos, and ‘dress code’.      Should employers be able to weed out workers whose appearance they don’t like?  Let’s start with the question of whether they can do this.  The answer is that they can, with a couple of exceptions.

1.     Employers Can Discriminate On the Basis of Appearance, with Two Exceptions

Remember that the Common Law does not prohibit discrimination in employment at all.  There is no tort of discrimination that applies to the hiring and selection process (recall Seneca College v. Bhaudauria), and a nonunion employer can fire an employee for absolutely no reason whatsoever.  Many people wrongfully believe that they can’t be fired without a good reason.  That is true of unionized employees, because unions bargain contract clauses requiring the employer to have “just cause”.  Unless a nonunion employee has bargained their own “just cause” clause into their contract, their employer can terminate them for showing up with a new tattoo or for dying their hair green, or just because the employer is in a bad mood.  No reason is needed.

Can Employers Discriminate on Basis of Piercings? Credit:  Postmedia News

Can Employers Discriminate on Basis of Piercings?
Credit: Postmedia News

Exception One:   Dress and Appearance Codes in Unionized Workplaces Must Be ‘Reasonable’

So the first exception to the general rule that an employer can discriminate on the basis of appearance relates to unionized employees.  If the employee is unionized, then the employer will need to establish that the employee’s appearance will have a real detrimental impact on the employer’s economic interests, as I have discussed before.  That’s because employer rules in a unionized workplace must be ‘reasonable’ according to labour arbitration jurisprudence.  A unionized employer’s dress or appearance code can be challenged as unreasonable by the filing of a grievance.  However, even a unionized employer can usually discriminate against job applicants whose appearance they don’t like, since the collective agreement rules don’t usually govern the hiring and selection process.

Exception Two:  Dress and Appearance Codes Must Not Violate Human Rights Statutes

The second general exception to the rule that an employer can discriminate on the basis of appearance is that an employer cannot use appearance as a proxy for a prohibited ground of discrimination in human rights legislation.  Human rights laws prohibit discrimination on the basis of certain designated grounds.  Look at Section 5 of the Ontario Human Rights Code, for example:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Do you think that an employer who refuses employment to an applicant because it doesn’t like her piercings and tattoos is discriminating on the basis of one of these grounds?

It’s possible, but only in the rarest of cases.  For example, a requirement to wear black could discriminate against a worker whose religion requires them to wear white.  A rule against piercings could discriminate against someone who has piercing for religious reasons or because piercings are a common symbol in their ethnicity.  If an appearance rule is really code for a particular skin colour or ethnicity, then that would discriminate. For example, a restaurant that hires only ‘pretty blonds’ would be in violation of this Section, because there are huge segments of the population that will not be blond because of their ethnicity, place of origin, ancestry, or creed.  If there are religions or ethnicities that require or expect tattoos of some form, then a ban on tattoos could be caught by creed.  You get the idea.  But a simple rule that we will not hire 24 year olds with purple hair and piercing through their cheeks is almost certainly not prohibited by human rights legislation.

Some commentators have argued that a tattoo is included within the prohibited ground of “colour”.  What do you think of that argument?  A tattoo certainly colours the skin.  On the other hand, I’m pretty certain that the intention of including ‘colour’ was to catch the immutable colour of one’s skin–the skin colour we are born with.  The argument that human rights legislation protects the right of employees to paint their skin without fear of employer reprisal would require a very expansive application of ‘colour’, essentially applying it to artistic or personal expression.

2.     Should Employers Be Prohibited from Discriminating Against Workers on the Basis of Appearance?

The woman in the National Post story is lobbying for an amendment to the Alberta human rights legislation to add “body modifications” to the list of prohibited grounds.  Do we like that idea?  Frankly, although I understand the sense of unfairness of being denied employment because of how you look, I don’t see the adding of body modification to human rights codes happening.  One problem with the idea is that it is under-inclusive.  If we are going to add body modifications, then why not other aspects of appearance, like dress, hair colour, weight, height, or just appearance more generally.   In some U.S. States, governments have added height and weight to the prohibited grounds.  Lots of employers hire people because they like how they look.  They are ‘pretty’ or ‘sexy’, they look ‘professional’, they look like they will ‘fit in’.  Do we think that is fair?  We could pass a law that bans employers from basing their employment decisions on “appearance” if we want, which would include ‘tattoos and piercing’ but also more than that.   Should we?

Questions for Discussion

Why do you think our governments have not prohibited discrimination on the basis of appearance?  

Do you foresee any difficulties in the application or enforcement of such a law?

In unionized workplaces, employers must justify a dress or appearance code and demonstrate that it is necessary to protect a legitimate business interest. Nonuniuon employers need not justify appearance codes at all.  Should a law be enacted that holds nonunion employers to the same standard of reasonableness as unionized employers?

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9 Responses to Should Employers Be Permitted to Discriminate on the Basis of Appearance?

  1. Ryan Edmonds Reply

    October 10, 2014 at 2:52 pm

    Hence the problem of having “gender expression” as a separate, standalone, prohibited ground of discrimination. It’s vague, redundant, and perhaps grants unintended human rights protection.

    Example: is a big shaggy beard “unprofessional”, or an expression of “masculinity”?

    There is already human rights litigation brewing on this topic – hopefully the HRTO provides some helpful guidance and sets some boundaries.

    • Doorey Reply

      October 14, 2014 at 12:16 pm

      Ryan, ha! Someone has argued that a big shaggy beard is ‘gender expression’? That would be a hilarious decision to read.

  2. Fernando Reis Reply

    October 14, 2014 at 3:13 pm

    Here is an example of the “reasonable rule” requirement applicable to unionized settings. As a union rep, I dealt with situations at a large poultry processor where employees were disciplined for having nose and other facial piercings. This was in violation of the employer’s safe food handling processes. The employer had introduced the policy and told the union it would be adopted and applied plant wide to production employees. The policy seemed logical and reasonable, after all, no one wants to find a metal object in their chicken hotdog. The policy conformed to the KVP rule. I was able to work out some arrangement where the discipline would be removed after a period of time. On the very same day when I handled a dozen or so of these disciplinary grievances, I decided, on my way home, to buy some chicken from the company store. Now, the employees at the store are not unionized. To my utter surprise, the young man serving me had a number of facial piercings. I immediately called the HR Manager and demanded that all discipline that had been issued for the policy violation be removed and the employees be made whole. The Company complied and then applied the policy company wide. The union was put on notice that the new policy would be adopted in two weeks. The lesson is that in a unionized setting, rules must be applied uniformly and consistently. The rules must apply to all employees (bargaining unit and non-bargaining unit)who occupy positions that would be captured by the rule.

  3. Steven Reply

    October 14, 2014 at 4:32 pm

    We haven’t seen a decision on the merits about whether the wearing of a beard can be protected under the Code ground of gender expression, but it appears we will eventually:
    http://www.canlii.org/en/on/onhrt/doc/2014/2014hrto890/2014hrto890.html

    Too bad the applicant is unrepresented.

    With respect to your comment, “their employer can terminate them for showing up with a new tattoo or for dying their hair green”, don’t you think hair colour is included in the Code’s prohibited ground of colour? Do you think that colour only refers to skin colour? Wouldn’t that be the same as race? What about eye colour? I can’t refuse to hire people with brown eyes because that could be a proxy for race.

    Do you think I can refuse to hire a young worker with green hair? What about someone with (natural) red hair? What, Professor Doorey, would happen if an employer objected grey hair? Surely grey-haired folks deserve the protection of the Human Rights Code while our green-haired neighbours deserve our derision and scorn!
    Does the protection of colour only apply if it’s your natural colour? And what if I coloured a small part of my skin – sort of like a tattoo? Is that protected? Because we all know you can’t discriminate against someone because of the colour of her/his skin.

    And finally, if I am Māori, surely my facial tattoos would be covered under the Code grounds of race, ancestry, place of origin, colour, ethnic origin, and creed. What if I got a face tattoo that said, “Jesus”, is that also protected by creed?

    So the Human Rights Code does seem to address the subject of appearance already. Just not for everybody.

  4. Doorey Reply

    October 14, 2014 at 5:51 pm

    Thanks Steven, yes if you can fit your hair colour into age or ethnicity, your clothing into religion, your tattoo into ethnicity, etc, then you have a human rights complaint. I said that. A tattoo with “Jesus”? Maybe creed as you say–that would raise interesting questions about BFOQ if the employer argues that customers or coworkers are offended by it. Refusing someone employment with a tattoo of a dog, their favourite band, a Greek God, or a half naked woman? I’d be shocked if that is a human rights violation. That is expression, but we don’t prohibit discrimination based on artistic or fashion expression. Yes, I do think an employer could refuse to hire you for having dyed green hair. What human rights ground would you put that into? Is there an ethnic group with green hair I don’t know about? Grey hair could be a proxy for age. I requirement to be blond would certainly violate the Code rights of people who are not white or whose ethnicity makes it highly unlikely that they will be blond. Again, as I noted in the blog entry. Good luck with the tattoo-as-skin-colour argument though. I doubt very much that the Tribunal would buy it. My guess it would interpret skin colour to refer to the immutable skin colour one is born with, not a personal decision to draw a picture on your skin. But who knows, I could be wrong about that. One day we may find out.

  5. Steven Reply

    October 16, 2014 at 5:11 pm

    Thanks Prof. Doorey, but I am still not sure I understand. If I had green hair and was refused a job, I would tick the box on the HRTO application form marked “colour”.(I’m not saying I would win, but think the law says I should win.)

    I think you are probably right about how the HRTO would deal with an application about a tattoo. But I am still curious about why you think that the ground of colour in the Human Rights Code does not include hair colour. I haven’t seen any case law on this subject. But I thought that the correct way to interpret the Code was, “a broad, purposive and liberal interpretation”, while defences were to be interpreted narrowly.

    Surely a broad, purposive and liberal interpretation of colour would include skin, hair and eye colour. And I don’t know what defence is open to an employer. You mentioned, “if the employer argues that customers or co-workers are offended by it” as a possible argument, but isn’t that the same argument used by some men don’t feel comfortable with female police officers, or people who don’t feel comfortable being served by gays or Jews?

    And wouldn’t that lead an employer to argue that he or she could post a job advertisement that called for applicants to be blonde. The employer could argue that the job was open to anyone willing to dye her hair blonde and had nothing to do with race/ethnicity. The employer could argue that being blonde was like part of the uniform. The employer could even offer to pay for the employee’s hair to be dyed. I thought that was the reason that defences were narrowly applied in human rights interpretations.

    I understand that society doesn’t place the same importance on hair colour that it does on skin colour. I’m not sure whether that’s because hair colour is much more easily changeable. But surely when the law says you can’t discriminate because of colour, you can’t just exclude hair colour any more that you could ignore skin or eye colour. (And I haven’t even turned my mind to the thought about discrimination against someone without any hair at all!)

    I also don’t mean to trivialize the subject. But it occurs to me that this issue is as old as the modern notion of human rights in Ontario. The Human Rights Code passed third reading in the Ontario legislature in December 1961. At the same time, the Ontario government was forced to deal with controversy around Brendan Keatinge, a Toronto Jail guard who had dyed his hair black. (You can read more: http://goo.gl/pRqcf)
    The turmoil apparently forced the government of the day to respond with the Public Service Act, 1961-62, which would lead the the modernization of labour relations of public servants in Ontario. I know it wouldn’t happen to a jail guard today, because of labour law and collective agreements, but it seems strange that labour law and human rights laws haven’t yet resolved the question of whether a person can be fired (or not hired) because of the colour of his hair.

  6. Bob Reply

    October 22, 2014 at 1:14 pm

    Steven, I have always felt the same way you do regarding tattoos. When the legislation specifically says colour, how then could a tribunal then say, “not THAT type of skin colour.” It seems to me that they’ve been taking increasingly expansive authorities, not less. Interesting read on Brendan Keatinge, although your link did not work for me, I was able to google and find out much more on him.

    And as mostly an aside, I have always been confused about the intersection between religion and habit… like your face tattoo that says Jesus. Certainly no religion requires one to get a face tattoo that says Jesus, right? But then some would argue that Islam does not require female adherents to cover their hair and faces, and yet we know that is covered by the code. Where does “deeply held” belief really start?

  7. rose Reply

    February 23, 2015 at 5:34 am

    I am very interested in this topic and would love some feedback! I’m a restaurant manager at a, very, prominent fast food restaurant. I was hired as crew 6 years ago with a visible tattoo. Around the time I was hired, there was a change in ownership, and the new owner put into effect a “no visible tattoos” policy. I have never covered my visible tattoo (wrist) in these six years. There are several, several employees within my franchise who have visible tattoos. There are employees who have obtained these visible tattoos, while employed by my franchisee, and they have remained employed. I have been promoted six times over the course of my employment. Here’s the hook: I’ve wanted a tattoo behind my ear since long before I was working for this franchisee. I didn’t expect to move up so much, into such a well paying, stable, salary position. My longing for this tattoo has not faded, but my dependency on my job has prevented me from going forward with getting it. Recently I brought this up to my direct supervisor. She told me that since I’m in an authoritative position, that I’m held to a higher standard, and that if I got this tattoo “it would not go over well.” I am afraid getting this tattoo will cost me my job. So there’s a few things here that heavily fuel my anger: I’ve always had a visible tattoo; other employees have gotten visible tattoos with no repercussions; there are numerous employees under my franchisee with visible tattoos; the “no tattoo policy” should apply to every employee, regardless of position; this goes against my freedom of expression! This is my body! My skin! It will effect my ability to do my job in absolutely no way. So – what can I do about this? Can my employer actually fire me? Thanks for your time.

  8. beth Reply

    September 27, 2015 at 7:20 pm

    I have done a lot of searching in terms of this subject, I understand that being in a more professional position would require a more “professional” look but I am curious to those jobs concerning health or in general simple part-time jobs. I myself am interested in going into medical studies and recently when I was treated medically, noticed people with quite a number of tattoos and some with facial piercing. I am curious of whether there is any legal discrimination in the health field since nursing or being a surgeon is definitely more circumstantial to experience, training and skill level but in the field of something like physiotherapy would there be any discrimination against any visible ink or physical appearance not already covered under the definition of discrimination or the Human Rights Litigation? I am also curious to a comment made earlier on this page by rose, based on the time of employment and as well the experience and position, would that not be arguable to not be fired based on a new tattoo? because 6 years, is clearly enough time to prove your skill and your hard work, would that still be cause of unemployment in that case?

    I wish to know more about this because I wish to be more familiar with the legality for future interests of employment and when receiving a tattoo in the future so that I do not ruin any employment I wish to receive or are receiving just because I was unfamiliar with the legality of the situation and the standards.

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