THE EMPLOYERS' EDGE
Tattoos No Longer Confined to Sailors and Inmates - Now They Can Also Be Visible on Hospital Workers, Arbitrator Rules
In a recent decision, a labour arbitrator found that a hospital’s policy of employees having to cover up tattoos and hide body piercing was unreasonable, not rooted in any legitimate reason and denied employees the right to present themselves as they see fit.
Although The Ottawa Hospital had a pre-existing dress code policy, in 2011 it amended the policy to include a requirement that employees cover up large tattoos while at work and not have visible, excessive body piercings. The Canadian Union of Public Employees Local 4000, who represented some of the employees affected, filed a policy grievance alleging that the policy unreasonably infringed on employees’ rights to express themselves in their appearance. The hospital’s position was that the amendments to the policy were necessary to ensure professionalism and provide good health care – some patients’ stress and anxiety levels may increase upon seeing their health care providers sporting tattoos and piercings.
In determining whether the amendments to the dress code policy were reasonable, in The Ottawa Hospital v. CUPE Local 4000 (Policy Grievance re: Dress Code Policy) the Arbitrator reviewed a decision from the 1970s, Borough of Scarborough, that dealt with long sideburns on men, which were controversial at the time. The Arbitrator adopted the finding in Borough of Scarborough that an employer does not have the right to create an employee in its own image. The 1970s style of long sideburns on men is equal to the current trend of tattoos and piercings. As the Arbitrator put it, “[a]nyone who has taken a stroll on a summer day knows that tattoos are no longer confined to sailors, stevedores and strippers”.
The Arbitrator found that the amendments to the dress code policy were unreasonable, vague, and created uncertainty among staff. Although tattoos and piercings are not protected by human rights laws, the Arbitrator found that they form an important part of an employee’s identity, giving the case human rights undertones. The Arbitrator noted that the hospital was willing to accept patients’ perceived prejudices and stereotypes about tattoos and piercings, but would likely not accede to wishes of patient who had perceived prejudices with respect to an employee’s race or ethnic identity. This did not pass the reasonableness threshold.
After reviewing expert evidence called by the hospital, the Arbitrator found that the hospital was trying to fix a problem that did not exist. It was not able to link tattooed and pierced employees to the quality of health care received by patients, and no harm created by the tattoos and piercings was shown to either patients, employees or the hospital itself. Furthermore, the Arbitrator found that the hospital serves 40,000 patients a year, and has only ever received two complaints that were related to tattoos and piercings. Clearly, tattoos and piercings were not a wide-spread patient concern.
This decision reinforces the long-held view that employer policies must be clear, reasonable and consistently enforced. Employers have not lost the ability to impose a dress code on employees, but, as always, must ensure that the dress code is reasonable and connected to the employees’ duties and the employer’s business.
The lawyers at Crawford Chondon & Partners LLP can assist employers in drafting and reviewing dress code policies to ensure that they meet the standards set in this and other decisions.
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