Judging books by their covers

Employers shouldn't read into tattoos, piercings when making hiring decisions

When I was a teenager, I really wanted a jean jacket. (Hey, it was the 1980s, don’t judge.) But my parents wouldn’t let me have one. My mom was a teacher and, in her eyes, kids who wore jean jackets seemed to misbehave more than those who wore corduroys. (Hey, I said it was the ‘80s.)

The point is there’s always been a stereotype associated with the way we look — the way we dress, how we style our hair and whether or not we have piercings or tattoos.

The photo on page one of this issue features Kendra Behringer, a 24-year-old Edmonton woman who has started a petition to make “body modification” — such as piercings and tattoos — a protected ground of discrimination under human rights law in Alberta. Behringer has 22 piercings above the neck and claims to have had her resumé thrown in the trash — right in front of her — because of her appearance.

I don’t have any piercings or tattoos — they’re not my cup of tea. And I totally understand why people find them uncomfortable. Growing up, I didn’t really know anyone with tattoos — I always associated them with criminals. Maybe the odd military person as well but, for the most part, tattoos signified one thing to me as a child: You were probably a bad seed and I should probably cross to the other side of the street.

But those days are long gone. Now, it seems more surprising to meet someone who doesn’t have a tattoo. (Maybe today’s “rebels” are the ones who choose to remain ink-free?) Pick a random sampling of individuals and you’re going to find more than just pierced ears.

Body modification is a form of expression, not a sign the person is a deviant, and it’s something employers shouldn’t be taking into account when making a hiring decision. There have been rulings already on this front. Back in 2009, Canadian Employment Law Today covered a case out of Quebec where a daycare banned employees from having visible tattoos.

One of the employees at the daycare had a dragon tattoo on her shoulder. She filed a grievance and a court ultimately sided with her — finding the ban was based on prejudices and stereotypes of people with tattoos. The judge pointed out tattoos are more common “in all levels of society” and employers shouldn’t be passing judgment on someone who has body art.

But the court did identify one limit — saying the employer could require inappropriate tattoos, depicting violence or other tasteless designs, to be covered up.

In 2013, we covered a similar case in Canadian Labour Reporter where the Ottawa Hospital attempted to cover up large, visible tattoos and excessive piercings. An arbitrator, while conceding it wasn’t a human rights issue, shot down that policy.

“Aside 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,” said the arbitrator. “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.”

Both those rulings seem reasonable and are hard to argue with — regardless of your personal views on tattoos and piercings. Over the years, the number of protected grounds under human rights have expanded with family status being the new kid on the block.

If employers continue to throw out the resumés of applicants solely because of a tattoo or piercing they find objectionable, it’s not a stretch to think Behringer’s petition to add body modification as a protected human rights ground could find a favourable ear. We’ve already heard arbitrators and courts frown on blanket policies.

So, while it’s far too late for me to get a jean jacket — the urge, not to mention the fashion, is gone — it’s time employers stopped judging books by their covers. There’s way too much talent under all that ink and nose rings to ignore.

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