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

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?