Most people have experience with an employee uniform or dress code policy (mine is “business casual”). There are often very good reasons to have employees look or dress a certain way. It can assist with productivity, promote professionalism and branding, and ensure uniformity. As such, employees’ attire/appearance can be a legitimate concern for employers. However, to the extent that a policy has no rational connection to a business need or unduly infringes on an employee’s self expression, it may be successfully challenged by unions.
This is exactly what occurred in one recent case involving a hospital dress code policy that, in part, prohibited employees from revealing large tattoos and wearing excessive body piercings. These requirements were struck down by an arbitrator.
The case
The hospital was seeking to ensure that its staff looked more “professional” and was of the belief that this would assist with patient confidence and patient care. The hospital stated that most patients were elderly and were uncomfortable with tattoos and piercings, and that such patients should have the right not to be cared for by someone who undermined their confidence.
The union argued that the dress code undermined employees’ “self expression” and the policy had no rational connection to health and safety. The union stated that, overall, in the absence of any objective evidence as to patient care or patient complaints, the policy was overreaching and unreasonable.
The arbitrator reviewed the general principle that policies in unionized workplaces must be clear, consistently enforced and not unreasonable. The arbitrator then remarked that the employer’s concerns were based on stereotypes about tattoos and piercings. The arbitrator drew a parallel between tattoos and piercings, and protected grounds of discrimination under human rights law in stating the following:
The hospital could not and would not accede to the wishes of a patient who might be uncomfortable with a care provider based on the employee’s race or ethnic identity, even though some patients might harbour those types of prejudices. However, the hospital seems willing to comply with other types of prejudices and stereotypes that have no link to the quality of the health care received by the patient.
Because the employer could not provide objective evidence that the tattoos and piercings caused a problem (indeed, there had been only two complaints regarding tattoos in a 10-year period), the arbitrator allowed the union’s grievance, found the dress code policy to be unreasonable and therefore struck down parts of the policy. According to the arbitrator, the employer had tried to “fix a problem that does not exist”.
Take-aways
This decision is important for unionized employers. It confirms that arbitrators will require employers to prove that a dress code policy is reasonable. This will require an employer to put forward actual evidence of the purpose of the dress code and policy’s utility. To the extent that a dress code is based on perceptions or “stereotypes”, vague allegations as to its purpose, or a lack of evidence as to its usefulness, an arbitrator is very likely to find that the policy is unreasonable.
Another important take-away is the commentary in the decision on societal perceptions of tattoos and piercings. Implicit in the reasoning is that perceptions of tattoos and piercings change over time and that, accordingly, restricting employees’ self expression or disciplining employees for tattoos and piercings (even though not specifically protected by human rights legislation) will not be received favourably by an arbitrator absent some compelling evidence.
Daniel Pugen
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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