Military’s recent restriction highlights human rights concerns for employers
Members of the Canadian army are no longer able to sport tattoos deemed discriminatory or sexually explicit, following a policy update issued in August.
The changes apply to both visible and hidden tattoos as the Canadian Armed Forces aims to strengthen a non-discriminatory and harassment-free work environment, according to army spokesperson Derek Abma.
The policy update applies to tattoos displaying nudity or connections to criminal activity, or promoting or expressing hatred, discrimination or harassment prohibited by Canadian human rights law. Non-compliance can result in administrative and disciplinary measures.
But don’t expect the army’s move to catch hold within the private sector, says Peter McLellan, a partner at Stewart McKelvey law firm in Halifax.
“In some ways, it’s a dangerous road to go down,” he says. “More employers are going to be governed by how the public will react.”
Freedom of expression is not a protected characteristic under human rights legislation in Canada, says McLellan.
“It’s not a human rights violation for there to be an employer policy banning, really, any kind of tattoo,” he says, noting that some exceptions exist for tattoos deemed religious in nature — such as a bindi.
However, the reasonability of tattoo restrictions or bans depends on the workplace or sector, he says.
“It would depend on the nature of whatever the employment situation is as to whether it would be offensive to co-workers or the public who you serve.”
While employers may have a neatness standard in place, the vast majority stop short of a defined policy, as such decisions often come down to a subjective judgment call that can be deemed discriminatory by the public, says McLellan, adding that unionized workforces may be protected more fully in this area.
In some cases, anti-harassment policies may determine that specific tattoos are in violation of workplace rules, he says.
Different work cultures have unique expectations for workers, says Ian Milford, principal at JRoss Recruiters in Vancouver.
Traditional hotels may want staff to cover up tattoos, while hipster restaurants may prefer hiring employees with visible ink, he says.
“[Tattoo] appropriateness, in our experience, is more about where the person is working,” says Milford, noting that most workers understand they may need to present themselves differently depending on the corporate setting.
Caution is needed for employers in interpreting offensive tattoos, says Michael French, professor at the University of Miami and author of a 2018 study on tattoos in the workplace.
“’Offensive’ is somewhat subjective,” he says. “Suppose you had a tattoo of a Confederate flag on your arm? To you, that might be a source of southern pride, whereas, to someone else, it can be viewed as slavery and oppression. People might view it very differently. I think that there’s a lot of grey area.”
Additionally, visibility should matter, says French.
“If you don’t see it, is it really offensive? Ultimately, it’s going to be a judgment call on whether certain images are offensive.”
Tattoos have become more mainstream and are no longer taboo in U.S. workplaces, says French, citing his survey of 2,000 Americans.
“What we found actually is no significant differences between those with and without tattoos — no matter how you examined tattoo prevalence,” he says.
“We asked about tattoos in a variety of ways,” says French. “And no matter which way we cut it, it still showed that people with tattoos didn’t seem to suffer any differential outcomes, relative to those without tattoos. That was a bit surprising to us.”
While acceptance of ink is growing in general, many workers will still refrain from exposing their body art, he says.
“A lot of people who do get tattoos are still a little concerned, and so they put them in places where they’re not typically exposed in the workplace.”
Separate research indicates many people still hold negative stereotypes about workers with tattoos, according to Anne Wilson, professor at Wilfrid Laurier University in Waterloo, Ont. and co-author of a 2018 report Tat will tell: Tattoos and time preferences, which surveyed 1,104 Americans.
The study also revealed employees with tattoos were more likely to make impulsive decisions, which may be of concern, she says.
“[Still], it wouldn’t be good practice to judge a person as impulsive solely on the basis of a tattoo,” says Wilson.
“Instead, if impulsivity is a concern for an employer, they might ask questions that directly assess a candidate’s tendency to live in the moment or plan for the future, instead of relying only on a tattoo to reveal a person’s orientation.”
Advice for HR
Some tattoos are more of a red flag than others — offensive or discriminatory tattoos could reflect not only impulsive judgment but other undesirable attitudes as well, says Wilson.
“I’d encourage HR to consider any policy around tattoos thoughtfully, and to evaluate individual cases with care,” she says. “An overly general ban would rarely be warranted.”
Employers averse to employees sporting ink designs may miss out on some solid staff options, says French.
“It’s really tough to find qualified workers, especially in entry-level positions — service, manufacturing,” he says.
“You’re going to be handicapping yourself relative to other workplaces that might be a little more lenient about that. You’re going to be unduly penalizing yourself if you dismiss workers out of hand if they have a tattoo.”
HR should refrain from judging recruits by their outward appearance, says Milford.
“Why would you lose a great candidate… for a personal decision that you may or may not agree with? That doesn’t make sense to me.“
Just because they have a tattoo doesn’t mean they ride a motorcycle on the weekends and sell drugs on the corner,” he says.
“Don’t judge a book by its cover. Don’t make a value judgment about somebody simply because they have a tattoo or an earring or a nose ring or whatever.”
But there is still space for personal judgment in hiring, says McLellan.
“I’m sure there are many employment decisions based on really irrelevant characteristics,” he says. “The human resource issue is: Are you depriving yourself of good talent?”
With ink and piercings becoming more socially acceptable, bans or restrictions may limit employers’ talent pools “for no good reason,” says McLellan.
Ignoring all non-relevant issues in recruitment is best practice, he says.
“I’d like to think that the desire of employers to have the best workforce would always be ahead of where the law goes, and the law will follow.”
In two recent cases, employer policies prohibiting tattoos were struck down due to a lack of evidence justifying the bans to override the employees’ right of expression and privacy.
Not enough evidence
In 2013, there was an Ontario arbitration decision where a hospital required employees to cover up large tattoos and remove “excessive” body piercings. The hospital argued it was important to convey professionalism to patients and ensure their health and safety, but the arbitrator found there was no evidence that excessive tattoos and piercings were causing any problems — some patients may feel uneasy on first impression but there was no connection between such feelings and the outcome of their health care. The arbitrator also found the dress code was vague and left employees uncertain about what was appropriate. The dress code was overturned. Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy), Re, 2013 CanLII 643 (Ont. Arb.).
In 2009, the Quebec Superior Court found a daycare facility’s ban on visible tattoos for employees was discriminatory. Employees with tattoos on their arms or legs at the Chicoutimi location always had to wear long-sleeve shirts or pants, even in summer. An arbitrator found that the employer was within its rights to have the ban, but the court found it was based on prejudices and stereotypes that were outdated, considering tattoos had become more common in “all levels of society.” The court noted that the employer still had the right to prevent employees from showing tattoos that could be seen as inappropriate for the daycare environment. Syndicat des traveailleuses des centres de la petite enfance du Saguenay – Lac-St-Jean-FSSS-CSN c. Girard, 2009 QCCS 2581 (Que. S.C.).