Carrying on with my post earlier this week noting that we don’t prohibit discrimination in employment on the basis of physical appearance in Canada, there’s a story in the papers today about a Winnipeg restaurant server who was dismissed for shaving off her hair. She claimed she had done so in support of a family member who was dying of cancer. Her boss told her she looked unacceptable and fired her. She filed a human rights complaint, alleging discrimination. We saw a very similar case a couple of years ago, when an Owen Sound waitress was dismissed after she cut off her hair in support of a fund raising effort for cancer.
Do these workers have a human rights case?
Read the list of prohibited grounds in Section 9 of the Manitoba Human Rights Code. Do any of these grounds apply here?
Her application was dismissed on the basis that the Code does not cover physical appearance, such as hair style. If she had cancer, and that was why she was bald, that would be a different matter. Also, if the employer fired her because they believed she had cancer, even if she did not, that would be illegal, since it is unlawful under the Code to punish an employee for their “presumed” inclusion in a prohibited ground. (see Section 9(1)). Here, since she presumably told the employer she was shaving her hair in support of someone else who has cancer, she could not claim that the employer believed she had cancer.
Unionized Workers Have Far More Freedom to Express Themselves Than Nonunion Employees
All of this might seem strange. After all, why should employers be able to fire someone just because they don’t like their hair style, or piercings, or how they do their makeup? In the non-union setting, the government has said employers should have that right (since they did not include physical appearance in human rights codes), and common law judges have always allowed employers to dismiss employees for any reason, or no reason at all. The only question is whether the employer has to give notice.
The situation is very different in the unionized setting. Unionized employers are required to prove that there is an actual business reason for physical appearance rules. For example, see this arbitration award from Walfoods Limited, in which a union challenged an employer’s rule banning jewelry at work. In a non-union workplace, if the employer doesn’t want employees to wear jewelry, it can ban all jewelry. Not so in a unionized environment. The arbitrator here states the rule about employer’s rights to issue rules about dress and appearance in unionized environment as follows:
There is no dispute that the Company has the authority under the collective agreement to issue personal appearance standards and that it has done so in good faith. The question is whether the new standards are reasonable. Reasonableness is to be judged on whether the standards are operationally necessary for a legitimate business purpose. I consider also whether the purpose can be achieved by a standard which impinges less on the employees’ rights of free expression
In other words, the employer must put forward evidence that the dress code or appearance rule is related to a legitimate business concern. If the Winnipeg waitress worked at a unionized restaurant, the employer would have to have convinced an arbitrator that customers would be turned off by a bald server (or one wearing a scarf or whig, as this person did).
Do you think a restaurant would be able to prove that customers would not come if there was a bald server? Do you think nonunion employers should also have to show some business reason to justify its dress and appearance rules?