Originally published on January 15, 2013
Ages ago, I took a labour law class with Professor David Beatty at U of Toronto law school. He had recently decided an arbitration involving Wardair, a now defunct airline that had a policy of banning male flight attendants from having long hair and wearing earrings. The union had challenged the law as unreasonable. Beatty was a 1960s’ Berkeley grad, with long hair to his shoulders at the time. He recounted how he entered the hearing room late the morning of the hearing, only to hear an audible “oh, shit” from the employer side of the table. [If you are interested in the judicial review of Beatty’s decision, here it is]
The question of whether an employer can introduce dress and appearance codes has been around for a long time. In the 1970s, it was long hair and sideburns. In the 1980s, it was earrings for men. Today, it is tattoos and piercings. In unionized workplaces, arbitrators require dress and appearance codes to be “reasonable”, which means the employer needs to demonstrate a business reason for the rule beyond just “I don’t like your look” (see below). However, in a non-union workplace, the main limit on an employer’s right to set dress and appearance codes is human rights legislation. Appearance codes cannot discriminate on prohibited grounds. In class, I ask students whether an employer policy that prohibits tattoos or piercings, or requires that they be covered while at work, violates Section 5 of the Ontario Human Rights Code. Do you think such a policy falls within one of the prohibited grounds in that section? Which ground, and why? For more discussion on employer rules on personal appearance in nonunion workplaces, see this post.
Recent Arbitration Decision on Tattoo Ban in Unionized Workplace
There was an arbitration decision released this week involving a hospital in Ottawa that considers whether the employer could introduce a policy requiring that “large tattoos” be covered up, that employees not display “excessive body piercings”, and that employees where a lab coat at all times, even on their lunches and breaks.
The decision is called The Ottawa Hospital.
This was a unionized workplace, so the union was able to file a grievance under the collective agreement challenging the new policy. No human rights argument was raised. In a unionized setting, arbitrators have ruled that employer rules must be ‘reasonable’, a test taken from a 1965 decision called KVP Co. Ltd.. The Arbitrator cited the key passage from KVP:
A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites:
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
6. Such rule should have been consistently enforced by the company from the time it was introduced.
In the Ottawa Hospital case, the employer argued that the new appearance rules were necessary because some elderly patients felt uncomfortable around staff with piercings and tatoos. It was the employer’s obligation to protect the welfare of the patients, and so employees needed to give a little on their personal expression. The employer argued that the KVP test is dated, and needs to be revised, at least in the case of hospitals, to give employers more lattitude to govern the appearance of staff in the interests of patient concerns.
The Union argued that the new appearance rules failed the KVP test. The rules were unclear and ambiguous (what is ‘excessive’ piercing, what is a ‘large’ tatoo). The rules were also unreasonable, because the employer presented no evidence at all that the rules were addressing concerns related to patient care.
The Arbitrator found for the Union, and struck down the appearance rules. The main reason was the lack of evidence of any legitimate business/service related harm associated with tatoos, piercings, or lab coats during off hours. Arbitrator Slotnick wrote:
I accept… the hospital’s assertions that some patients might have a more negative first impression of a tattooed or pierced hospital staff member than they would of a staff member who was not tattooed or pierced. I also accept that the lack of complaints does not necessarily mean that there is no uneasiness felt by some patients. What I cannot accept is the hospital’s argument that there is a connection between these feelings and health care outcomes. The hospital provided no evidence whatsoever for this assertion, which seems to be based only on the personal opinions of [the Manager] and possibly other senior managers.
So, the standard argument wins the day: a unionized employer cannot impose dress and appearance codes based on the personal views and biases of managers. The employer must point to concrete evidence that the rules are necessary to address a real business-related concern.
The Arbitrator includes an interesting reference to human rights issues:
This is not a human rights case. But there are echoes of old human rights debates here. The employer’s argument is explicitly based on its willingness to accept and acquiesce to patients’ perceived prejudices and stereotypes about tattoos and piercings, even as it offers no evidence that these have any impact on health outcomes. The employer suggests in its argument that the union wishes to “force” patients to deal with hospital workers flaunting their self-expression through tattoos and piercings. But while tattoos and piercings are not protected under human rights laws, the evidence in this case was clear that many of the employees regard those aspects of their appearance as an important part of their identity. The hospital could not and would not accede to the wishes of a patient who might be uncomfortable with a care provider based on the employee’s race or ethnic identity, even though some patients might harbour those types of prejudices. However, the hospital seems willing to comply with other types of prejudices and that have no link to the quality of the health care received by the patient.
Questions for Discussion
Do you agree with the arbitrator’s decision that an employer must prove a link between appearance and performance in order to justify an appearance code?
Note that in a nonunion workplace, there is no requirement for an employer to meet the KVP test. That means nonunion employers can usually impose whatever dress or appearance code they wish, subject to any human rights issues that could arise. Unionized workers clearly have a greater right to personal expression at work. Which model do you think is best? Why?
Can you think of situations in which a workplace rule banning body piercing, hair colour, or dress violate the Human Right Code?
Should the Human Rights Code prohibit discrimination on the basis of personal appearance? Why or why not?