When politics and uniforms collide

Recently, on an Air Canada flight from Toronto, a passenger noticed a pin on a flight attendant’s uniform that was shaped like Israel but coloured in Palestinian colours and featuring an image of Al-Aqsa Mosque.

The passenger complained, saying he felt “harassed, threatened and unsafe,” and characterised the pin as a political statement that crossed into antisemitism. Air Canada has since said it is reviewing the complaint, filed amid concern that the symbol represented antisemitism.

For many organizations, dress codes once meant hemlines and hair length. Now, they can involve political symbols, Pride stickers, religious dress, safety gear and brand identity.

So, where is the line between a worker’s freedom of expression and an employer’s duty to provide a safe, non-discriminatory environment for customers and colleagues? When does a pin become a policy problem – or a human rights issue?

To unpack those questions, Canadian HR Reporter spoke with two employment lawyers, Shannon Sproule and Ellen Low, who say the Air Canada incident is part of a bigger picture where dress codes, human rights and workplace culture intersect.

Open up conversation first

If an employee turns up at work wearing something controversial, Sproule’s advice is to resist the urge to react on the spot.

“The best way to deal with it is to talk to the employee and understand the purpose of the attire or symbol or pin, just so you can get a better sense of why they’re wearing it,” says the associate at Turnpenney Milne in Toronto. “And [ideally] you already have a written policy at that point… so you can root the conversation in something and reduce the risk of the person feeling targeted.”

Sproule recommends starting with curiosity, not accusations.

“You want to approach the conversation from an open end first, even if it appears that it seems clear that it’s a violation of the employer’s rules… to get a better understanding of why they wore what they wore.”

There’s a human rights dimension to that approach, she says.

“If you’ve taken the time to explore this with the employee and understand the background and the reason for wearing it, you’ll then have also satisfied your obligations to make sure you’re not violating the individual’s human rights by asking them not to wear such attire or pins or symbols to the workplace.”

Low, managing partner and principal lawyer at Ellen Low & Co. in Toronto, highlights the question of unionization, as that can impact the immediate response to a situation. But she agrees that it makes a lot of sense to have a conversation with the employee first, asking, for example: “Are you aware of the dress code? Is there a reason why this is happening?”

That then puts it, effectively, under the duty to inquire, which is protected by the human rights provisions, she says, and can reveal if there’s a reason for the questionable attire “from an accommodation lens, before we’re applying a disciplinary principle to this presumptive breach of the policy.”

Freedom of expression versus workplace rules

When employers step in, they often face pushback around free speech. Sproule says the law acknowledge self-expression but puts important limits on how far this goes at work.

“This is an evolving issue with various nuances, but what we do tend to see from the cases is that it can’t be arbitrary. So, the employer can’t one day decide that there’s a specific pin or symbol that they disapprove of and tell the employee not to wear it.”

Consistency and justification are key, she says.

“If they have a consistent written policy that they apply to everyone, then there’s a greater chance of having success and being able to say, ‘You’re not permitted to express yourself in this way in the workplace.’”

Essentially, employers must be able to show how the dress code policy furthers a legitimate workplace objective and operational interest, says Sproule, such as health and safety considerations.

“Telling an employee not to have a certain tattoo displayed might be deemed to be an unjustified dress code policy if there’s really no nexus to the employer’s goals. So, that's really where you want to strike a balance as an employer — it cannot be arbitrary and it cannot be discriminatory.”

She points out that courts are not banning dress codes outright but assessing on a case-by-case basis: “What the court is really looking for is a nexus to… the workplace objective and operational interests.”

Policies must be justifiable

According to media reports, the airline’s spokesperson said it has a policy for uniform staff that covers which pins and symbols are permissible, noting there is “a finite list of pins that are accepted, none of them political… Instead, think of something like a poppy.”

For Low, the Air Canada incident highlights why having a clear and consistent policy is essential. Looking at the law, she says there’s no doubt that employers can set the rules.

“In Ontario, at least, employers have fairly significant latitude to establish dress codes and uniform policies. But we always have to be cognizant of employee and service recipient human rights. And that’s kind of the big one.”

Low stresses that it’s not just about having a policy but evaluating whether that policy can be justified.

“We understand and we accept that the employer has managerial prerogatives to establish dress codes and uniforms, but… based on past cases and jurisprudence, we know there must be, effectively, a bona fide occupational requirement or a justified business reason or standard to have that policy in place.”

One of the other practical questions for HR is whether customer-facing staff should be held to a stricter standard than back-office employees.

Low says it’s important, from a business perspective, to have a consistent policy for everybody.

“One of the things that the company is going to want to be able to say is that it’s a uniform policy that applies to everyone, whether they’re customer facing or not,” says Low. “It helps with the question … of ‘Is it for a bona fide occupational purpose that we have implemented this specific portion of the policy?’”

Pride sticker case provides insights

Low points to a 2024 decision from the Human Rights Tribunal of Ontario that she says is particularly instructive: Zanette v. Ottawa Chamber Music Society (Chamberfest).

While volunteering at an event, the individual displayed a rainbow sticker next to his name badge, and the employer asked him to remove it, saying it was not in accordance with the Chamberfest dress code, she says. While the volunteer complied, he later brought a human rights claim alleging discrimination based on sexual orientation, gender identity and gender expression.

The tribunal applied the standard three-part test for discrimination: Was the applicant part of a protected group under the code? Was the applicant subject to adverse treatment? Was the applicant’s code-protected characteristic a factor in the adverse treatment?

In that case, the first two were satisfied, says Low, as he self-identified as a member of the 2SLGBTQ2 community and was subjected to differential or adverse treatment by being asked to remove the sticker.

The case turned on the third element: whether the protected characteristic was a factor in the treatment.

“Interestingly enough, the [tribunal] found that the third element of the test was not satisfied… because it found that the adverse treatment was not due to his membership within the community,” says Low. “There was no evidence to suggest the policy was arbitrarily applied just to the applicant because of his sexual orientation, gender identity, gender expression.”

She says the tribunal went on to consider whether the request to remove the sticker was a form of indirect discrimination – and again did not find a violation, because the employer’s policy against any alterations was consistently linked to protecting brand identity.  

Creed and accommodation

Dress codes often raise complex questions around creed – particularly when uniforms clash with religious or belief-based attire. Sproule says creed remains a nuanced area despite policy guidance from bodies such as the Ontario Human Rights Commission.

“Creed… typically requires interpretation when we’re looking at accommodation requests,” she says. “So that’s really where the employer would need to interpret the request. If … [a] person’s not able to comply with the uniform, and then the person raises creed as the reason for that, then they would have to assess that specific accommodation request. And that would include the nexus between the employee's request and a sincerely held belief.”

However, there is room for interpretation because it is a human rights analysis, and it relies on how the case law has defined creed, says Sproule.

“Not every single request will need to simply be granted. It would still need to be a request that satisfies the human rights definition of creed. And it would also have to be attire that has a nexus as well to the creed.”

Discipline and dress codes: proportionality wins

When a worker breaks the rules, both Sproule and Low emphasize that discipline should be gradual and proportional, not a knee-jerk reaction.

“When we’re looking at attire, typically giving the employee the chance to remove it — and commit to not doing that again — could very well be a reasonable outcome, along with a warning that if they don’t abide by the dress code policy in the future, there could be further discipline,” says Sproule.

However, it also depends on what they displayed and what would be an appropriate response if it offended clients or fellow co-workers.

“That might be a situation that warrants discipline that is slightly more escalated, depending on the actual content of the attire. It’s going to have to be proportional.”

Low cautions strongly against jumping straight to termination.

“It would be very difficult, in my opinion, to justify a one-time uniform breach as ‘wilful misconduct’ presumed to be Ontario Employment Standards Act, such to obviate any sort of termination and severance entitlement.”

But the employer would want to document the fact that this was a policy violation without accommodation or a human rights exception, each time, she says.

“And continue to have some discussions with the employee about why this is continuing to happen before you consult with and/or consider taking any more drastic steps, including some sort of termination, either without cause or on the basis of willful misconduct or possibly a common law cause.”

Over time, Low notes, if an employee has no exemption or accommodation need and continues “willingly, flagrantly violating your dress code policy without need for accommodation or other explanation on a regular basis, that just becomes a regular disciplinary problem.”

In that case, she says, employers want to be able to show: “We brought this policy to your attention multiple times.”