Tattoo cover-up policy not reasonable

The Ottawa Hospital instituted a new policy on tattoos and piercings. The arbitrator found that evidence on patients' preferences did not trump the freedom of expression of employees and the policy was disallowed.

The Ottawa Hospital modified its dress code policy to require workers to cover up large, visible tattoos during working hours. The hospital also sought to prohibit visible, excessive body piercings.

The union grieved.

On Oct. 13, 2010, the large metropolitan hospital employing about 12,000 workers at two sites adopted a new, comprehensive dress code policy. The policy was slated for implementation in March 2011. The union received a draft of the policy on Nov. 25, 2010 and filed a grievance on that same day.

Non-contentious elements of the new dress code existed previously as separate elements in the hospital’s code of conduct and in other policies governing hygiene procedures and requirements for personal protective equipment.

The union had no objection to elements of the dress code that were designed to address legitimate, evidence-based concerns with respect to hygiene and health and safety.

However, the union did object to the hospital’s attempt to compel workers to cover up visible tattoos and piercings.

Individual liberty and personal expression were at issue in this case, the union argued. It was clear that workers who had adopted tattoos and/or piercings viewed their adornments as a significant part of their identity and as a mode of self-expression. The union said the hospital was attempting to force its workers to reflect the hospital’s corporate image and its judgments about suitable professional appearance.

KVP

The union said that management’s right under the collective agreement to make rules was subject to the criteria set out in Re KVP Co. Ltd. and Lumber and Sawmill Workers Union, Local 2537.

Elements of the dress code failed to meet KVP requirements, the union said. The rules were not consistently applied; they were not clear and unequivocal; and, they were not reasonable because they were not based on any legitimate need of the employer, the union said.

The employer said that patient care was its key priority and that it was properly concerned with the sensibilities of an elderly demographic of patients who were not at the hospital by choice. The employer argued that these patients were entitled to be cared for by someone who was not out to make a statement through their personal adornments in a way that would serve to undermine the patient’s confidence in the employee’s professionalism. There were legitimate limits on appearance and the employer said that it was entitled to set those limits. In this case — where there was a question of balancing the interests of employees and patients — the balance should be resolved in favour of the patients, the employer said.

The employer acknowledged that a dress code that permitted traditional ear piercings while prohibiting other “visible, excessive” piercings would not measure up to KVP standards for clarity and consistency.

Patients first

Nevertheless, the employer argued that its proposed policy was reasonable in the circumstances. The employer said that the policy’s failure to conform to KVP requirements exposed the limitations of the KVP test. To address tattoos and piercings in the workplace, the hospital could either develop a policy that was clear or a policy that was reasonable but it could not create a policy that would satisfy both requirements.

Hospitals were not like retail or industrial establishments. The KVP requirements needed to evolve, the employer said, in order to acknowledge that patients must take priority over employees in a hospital setting.

The Arbitrator disagreed.

KVP principles have stood the test of time and form the bedrock for understanding the limitations on management’s rights, the Arbitrator said.

“[T]his employer is seeking to exempt itself entirely from the requirement of reasonableness simply because it is a hospital. It wants the power to impose any rule that it believes will benefit patients unless that rule causes physical harm to employees, without any requirement to provide evidence supporting the rule. I cannot accept this.”

Not a human rights case

The Arbitrator also rejected the employer’s contention that it could not develop a dress code that could live up to KVP requirements for clarity and consistency in enforcement. Such rigour was necessary to allow employees to be able to distinguish between what was permissible and what could cause them to be disciplined. Clarity and consistency were also necessary to prevent supervisors from engaging in overly subjective, arbitrary and inconsistent enforcement.

This was not a human rights case, the Arbitrator said. Tattoos and piercings are not protected under human rights laws. Nevertheless, the case raised echoes of old human rights debates. The employer’s arguments were based explicitly on its willingness to act on the perceived prejudices of patients in ways that it would never contemplate if an employee’s race or ethnicity were the issue.

“[A]side from the personal opinions of its senior managers, the hospital has provided no evidence for its rationale that there is a link between health care outcomes and the new rules it has imposed. For this reason, it is my conclusion that the provisions of the dress code that go beyond existing policies do not meet the test of reasonableness… The hospital has not shown that there is any legitimate reason for the employer to control the exposure of tattoos and piercings to the extent the dress code does. Where no harm can be shown to either patients or employees or the hospital itself, the restrictions are an infringement of the employees’ right to present themselves as they see fit.”

The policy was declared void and unenforceable.

Reference: The Ottawa Hospital and Canadian Union of Public Employees, Local 4000. Lorne Slotnick — Sole Arbitrator. Peter Engelmann for the Union. J.D. Sharp for the Employer. Jan. 14, 2013. 43 pp. 

Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.

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