How far can an employer go in dictating employee appearance?
Question: How far can a workplace dress code and appearance policy go? Can an employer dictate what types of jewelry and clothing can be worn and what kinds of tattoos and piercings be visible?
Answer: In a non-union workplace, the employer will have greater latitude in stipulating and enforcing rules of appropriate dress and appearance. However, even in a non-union workplace, the employer’s right to impose workplace dress code and appearance policies is not unlimited. There are human rights considerations that must be taken into account in some circumstances. Where certain appearance or attire is a requirement of an individual employee’s religious beliefs, an employer dress code or policy that negatively impacts upon that requirement may lead to a complaint of discriminatory treatment. In setting such a policy or workplace requirement, it is important to consider whether the policy could adversely impact upon employees who may belong to a particular religious group.
There are numerous cases emanating from unionized workplaces dealing with disputes between employers, employees and unions in relation to workplace dress codes and appearance policies. In circumstances where the collective agreement does not specifically address the issue, arbitrators have generally adopted the position that an employer may discipline employees for the clothes they wear or how they groom themselves for work. To do so, however, the employer must be able to establish there is a real threat to the health and safety of the workplace, the company’s product or sanitation of the workplace, or the company’s business image stemming from the employee’s non-compliance with the rules and regulations.
In determining whether such rules on personal attire are reasonable, the practice of arbitrators is to balance the employer’s concerns in regards to its image and its safe or efficient operations against the employee’s rights of personal freedom to express one’s individual identity. Given that this balancing act is fact-specific and depends on the nature of the employer’s business, the employee’s job description and the personal interests at issue, the employer is tasked with the burden of establishing that an employee’s personal appearance poses a real threat to the company that surpasses the rights of the employee. Arbitrators have generally taken the view that an employer must produce objective evidence of prejudice and loss. For instance, an employer will be able prove the employee’s personal appearance is prejudicial to the business in the event of complaints from the public or consumer opinion surveys.
A distinction has been drawn, however, between rules that affect employees both on and off the job and less arduous rules impacting an employee’s appearance only at work. Employees have often not succeeded in cases where all that had to be done to conform with the dress code was to buy or wear certain pieces of clothing, tie up their hair or remove or alter a piece of jewelry.
In West Lincoln Memorial Hospital and C.L.A.C., Local 302, the union’s grievance in relation to the hospital’s order that two dietary aides who prepared and served food to patients remove their nose studs during work hours was permitted in light of the hospital’s inability to objectively demonstrate any connection between nose piercing and an increased risk of disease transmission. The hospital, in accordance with its existing dress code guidelines, retained the right to monitor the health and suitable care of the employees’ piercings, therein maintaining a balance between the employees’ right of self-expression and the hospital’s legitimate concerns of the risk of cross-contamination.
Another example is the arbitration in Kitchener-Waterloo Record and C.E.P., Local 87M, where the union brought a policy grievance on behalf of a number of newsroom employees, alleging the imposition of a new dress code requiring business attire was unreasonable. In view of the Union’s arguments that the employer failed to articulate a legitimate business reason for adherence to the new code and the proposed code in fact conflicted with the conveyed “hip” image of the newspaper, the dress code was found to be unreasonable.
An employer’s right to dictate what types of jewelry and clothing can be worn in the workplace will hinge on the reasonableness of the requirements. In circumstances where an employer can produce evidence of health or safety factors, product control or public reputation, an employee’s refusal to conform to the standard dress code will be grounds for discipline.
For more information see:
•West Lincoln Memorial Hospital v. C.L.A.C., Local 302, 2004 CarswellOnt 2281 (Ont. Arb. Bd.).
•Kitchener-Waterloo Record v. C.E.P., Local 87M, 2006 CarswellOnt 3270 (Ont. Arb. Bd.).
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or firstname.lastname@example.org.