Can we require a worker to remove body piercing?

Is it discrimination if you require a worker to take them out? Does it have to be safety-related, or can we ask them to remove them because we don’t like the way they look?

Brian Johnston
Question: Can an employer make a worker take out body piercing? Is it discrimination if you require a worker to take them out? Does it have to be safety-related, or can we ask them to remove them because we don’t like the way they look?

Answer: The emerging view is that an employer is able to set personal appearance standards as long as these standards pass the test of “reasonableness.”

The test of reasonableness is whether the standards are operationally necessary for a legitimate business purpose balanced against the employee’s rights of personal freedom. At least one commentator has said the test of reasonableness is more burdensome in cases where the impact of the rule extends to the employee’s private life. Recent cases make clear that asking an employee to remove body piercings simply on the basis the employer does not like the way they look will fail the test of reasonableness.

A recent case, Westfair Foods Ltd. v. U.F.C.W., Local 401, declared an employer’s “piercing policy” unenforceable when the employer failed to establish its total ban of visible body piercing was unreasonable. In this case, the employer prohibited all facial jewelry, aside from earrings and facial jewelry worn for religious reasons, for employees working at its Alberta locations.

The employer relied on a public consumer survey it commissioned from polling firm Ipsos-Reid to support its belief that allowing facial jewelry would result in loss of business. The arbitrator found the survey failed to establish that the employer’s policy of banning all visible piercing (earrings excepted) was necessary to avoid a loss of business. Thus, it is critical for an employer to have expert evidence that it will lose business without a “piercing policy” in place.

Likewise, for a policy to succeed on the basis of safety, it will be critical for an employer to provide expert evidence supporting its contention that wearing the jewelry poses a safety risk. In the recent Walfoods Ltd. v. U.F.C.W., Locals 175 & 633, an arbitrator upheld the employer’s policy as it related to watches, bracelet, rings and artificial nails as expert evidence showed the risks of food contamination were increased through wearing hand and wrist jewelry.

In addition to the risk of food contamination, the arbitrator found there was a small risk to employee safety if one of these prohibited items came into contact with a machine.

Assuming an employer has a legitimate business purpose behind its “piercing policy,” it will have to consider the next issue of accommodation where a human rights protected characteristic is at issue. The 1999 decision of the Supreme Court of Canada in Meiorin stated that once a complainant establishes a prima facie case of discrimination, the onus shifts to the defendant to justify its policy. In particular, the employer must show:

•it adopted the standard for a purpose rationally connected to the performance of the job;

•it adopted the standard in good faith in the belief that it was necessary for the fulfillment of that legitimate purpose;

•the standard is reasonably necessary to accomplish its purpose, in the sense that it is impossible to accommodate individual differences without imposing undue hardship on the employer.

The test for whether the employer has a legitimate business purpose is similar to the “purpose” and “good faith” elements of the Meiorin accommodation test. The third part of the Meiorin test will require an employer seeking to impose a “piercing policy” on its employees in the face of a human rights protected characteristic to show it is impossible to accommodate individual differences without undue hardship.

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or bjohnston@smss.com.

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