Tattoo ban policy must be taken on case-by-case basis: Lawyer
Whether it be the name of a loved one, a Chinese symbol or a full arm sleeve, police officers in Medicine Hat, Alta., are required to keep their tattoos under wraps.
In August, the Medicine Hat Police Service upheld a policy requiring officers to cover up any tattoos while on duty, according to Andy McGrogan, the city’s police chief. The policy, first implemented in 2008, was recently challenged by an officer who wanted to display his body art while on the job.
So, the 115-officer police force decided to survey community members to see if they would be comfortable if the policy was amended.
“The survey results were overwhelmingly in favour of coverups. Our community was not comfortable with visible tattoos,” said McGrogan. “When (officers) go to the door of some little old lady, will she open the door if you have two full-sleeve tattoos and pink hair? The community said ‘No we won’t, we’re not comfortable with that.’”
The decision to survey the community stemmed from a 2011 decision where an arbitrator knocked down the Ontario Provincial Police’s tattoo ban after the union filed a grievance.
For an organization to demonstrate the reasonableness of such a policy, “the employer must establish, on the balance of probabilities, that there are legitimate and cogent business reasons that objectively demonstrate that the appearance would adversely affect the enterprise,” said the arbitrator.
Nearly two-thirds (61 per cent) of the Medicine Hat survey respondents agreed or strongly agreed public respect of the police would drop if standards in relation to body art were relaxed, found the survey of 2,000 people.
One-third (32 per cent) of the respondents said they would not be comfortable dealing with a police officer who had a tattoo anywhere. More specifically, they would not be comfortable if officers had tattoos on their head (52 per cent); neck (45 per cent); hands (39 per cent); or arms or legs (39 per cent), found the survey.
“The issue is comfortability of the community. If 45 per cent of the people are not comfortable with it, is that OK? Well, is marginalizing 45 per cent of our community appropriate? And the answer is obviously no,” said McGrogan. “We shouldn’t be marginalizing anybody, we shouldn’t make anybody feel uncomfortable.”
Since the community has been surveyed, there have not been any other challenges to the policy, said McGrogan.
“Generally, our guys get it, our people get it, that their appearance and their approachability is extremely important as it is related to satisfaction.”
For most firms, an outright tattoo ban may be a bit harsh because acceptability can vary based on individual roles, said Gary Agnew, partner at Cenera, a human resources and business consulting firm in Calgary.
“If the organization is conservative and it’s trying to project a conservative message and they have a receptionist that is sporting loud tattoos, how does that represent them?” he said. “But what harm is that if you’ve got a really dedicated, hard-working warehouse person who is not in the public eye?”
From a legal perspective, it is possible to have a policy prohibiting tattoos, but not all employers will have a legitimate interest to put one in place, said Valérie Korozs, an associate in the labour and employment group at Lavery law firm in Montreal.
“It will depend on the context. It’s a case-by-case analysis,” she said. “In the context where an employer will have those interests to have such a policy is when its image is involved, where it’s a question of credibility towards its clientele.”
The Centre Jeunesse de Montréal — a centre that helps vulnerable youth — has a dress code policy in place which prohibits tattoos that “reveal more intimate parts of the body” because part of its mission is to serve as a model for its clients, said Korozs.
But the policy was challenged by the Canadian Union of Public Employees (CUPE). The union said the policy violated several rights under the Charter of Rights and Freedoms including the right to privacy, right to physical well-being and freedom of expression.
“If the case goes to arbitration because the union thinks the policy on tattoos is abusive and illegal, an arbitrator will have to look at the infringement on one of the fundamental rights protected by the charter and whether the potential violation was justified,” said Korozs.
The arbitrator found fundamental rights were not violated and upheld the policy in a decision tabled in April.
Aside from potential human rights implications, employers risk losing very capable, well-educated employees by having a ban in place, said Cayla Martin, a University of Calgary master’s student who is researching the perception of tattoos and piercings on young women entering professional careers.
“Some studies show a picture of a person with or without piercings or tattoos (and assess) what is your reaction, and more often than not they say they would hire the person without the piercings and tattoos,” she said. “And there’s a stigma of promiscuity, heavier drinkers, lower socio-economic status… that goes with the piercings and tattoos.”
No piercings of any kind are allowed within the Medicine Hat Police Service as they pose a health and safety risk to officers on duty, said McGrogan.
Employers should look past the physical appearance of a potential candidate and be more open-minded when interviewing people with tattoos, otherwise it’s another form of discrimination, said Martin.
“There could be someone with a really terrible style of dress but that’s not going to determine who they are as a person,” she said. “No matter what you look like, there’s a capability that’s totally independent of appearance and so be aware of those automatic thoughts when you’re hiring someone.”
An employer has the right to implement policies and regulations of its choice within the workplace, including those around tattoos, said Korozs. However, to be upheld in the event of arbitration, the policy must be reasonable; clear and unambiguous; applied with consistency; and compatible with the collective agreement.
Employees should be aware of the policy before it is in place and informed of the disciplinary measures if breached. When it comes to the type of tattoo, employers would be wise not to discriminate among them, said Agnew.
“Art is in the eye of the beholder,” he said. “It’s unfair to someone who has a star on the back of the wrist that’s going to show up all the time to say that’s OK but (to not allow) someone who has a swastika on the back of their hand — then you’re discriminating.”
The tattoo ban at the Medicine Hat Police Service applies to all types of tattoos.
“I don’t want to become the tattoo police,” said McGrogan. “Personally, if some guy has a tattoo of a Canadian flag on his arm, I don’t care, but how do we start getting into that? Then we start getting really subjective.”
While tattoos are becoming more mainstream, workplace acceptance is not necessarily increasing — the two don’t go hand-in-hand, said Martin.
“Attitudes have changed over the years and attitudes toward tattoos are much more open. It was a bit of a rebel statement at one time — now it’s more personal, marking special events,” said Agnew. “But a lot of leaders are thinking back to their days as young people… and there are a lot of organizations struggling with it right now.”