Tattoos and piercings in the workplace

Question: Are customer complaints, or a risk of losing customers, a legitimate business reason for implementing a dress code requiring employees to cover tattoos and remove facial jewelry?

Answer: The existence or risk of customer complaints are among the factors that may be considerations in creating a dress code. However, such complaints may not be sufficient to justify requiring employees to cover tattoos and remove facial jewelry.

While personal appearance is not a protected ground, human rights statutes protect employees from discrimination based on factors such as race, sex, disability and religion. In this regard, a dress code that requires employees to cover tattoos and remove facial jewelry could be found to be discriminatory. For example, tattoos or piercings may be connected to an employee’s race, place of origin or religious beliefs, or may serve the purpose of covering facial or body scarring due to a medical condition.

Evidence of customer complaints will likely not enable an employer to justify a discriminatory dress code. It is accordingly essential that any dress code prohibiting visible tattoos or piercings be carefully drafted to avoid discrimination, and to allow exceptions as a reasonable accommodation.

Before implementing a dress code, an employer should consider whether the requirements are reasonable. This is important for workplace morale, but also when the employer is considering what it is going to do if an employee fails to comply. If an employee is disciplined or dismissed for non-compliance, the employer may need to prove that the relevant requirement was reasonable.

The majority of case law in this area arises from unionized workplaces, where arbitrators have considered union challenges to dress codes or appearance policies. Arbitrators have found that in evaluating the reasonableness of such policies under the tests set out in Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co., it is necessary to balance the personal freedoms of employees against the employer’s legitimate business interests.

Employers have usually not had trouble justifying dress codes designed to promote their business image, and that only affect an employee while on duty, such as specifying the colour or type of clothing to be worn at work. Also, policies based on safety or hygiene — such as no dangling jewelry near dangerous equipment — are usually fine.

However, it is becoming increasingly difficult for employers to defend policies that prevent employees from displaying tattoos and piercings as they become increasingly prevalent in our society. In some arbitration cases, public opinion surveys have been presented on whether customers and other third parties would be offended by visible tattoos or piercings. In most cases, the employer has been unable to prove that a rule against tattoos or piercings was necessary to protect its business interests.

Tattoos and piercings can reflect an important aspect of personal identity and a requirement to cover tattoos or remove piercings can be challenging for some people.

Given these factors, an employer must be able to establish that there are legitimate and cogent business reasons that objectively demonstrate that the display of tattoos and piercings would adversely affect its business. The mere risk of losing customers or isolated complaints, would not be sufficient.

Arbitrators have repeatedly overturned dress codes prohibiting visible tattoos and piercings where the employer was unable to provide objective evidence supporting the policy. For a good review of the jurisprudence, see Westfair Foods Ltd. v. U.F.C.W., Local 401, and Ottawa Hospital. In the latter, the arbitrator likened a policy prohibiting tattoos and piercings to policies in the early 1970s that prevented male employees from having long sideburns — policies which the arbitrator noted now seem “quaint.”

Ultimately, the evidence needed to establish that a dress code is reasonable will depend on the nature of the business and the jobs performed by its employees. Dress codes should be as narrow as possible, clearly worded, and consistently enforced.

For more information see:

• Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.).

• Westfair Foods Ltd. v. U.F.C.W., Local 401, 2005 CarswellAlta 1097 (Alta. Arb.).

• Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy), Re, 2013 CarswellOnt 130 (Ont. Arb.).