The legality and enforceability of policies that attempt to regulate a person's appearance have recently garnered much media attention. Recent headlines have focused on dress codes in the public school system; however, much of the discussion applies to similar policies in the workplace. The burning question in the minds of many employers is: can I regulate the appearance of my employees in my workplace? The answer, of course, is dependent on a number of factors.
Workplace policies may attempt to regulate appearance in many ways, from requiring employees to wear a uniform, implementing a dress code, regulating personal grooming, and/or prohibiting visible body piercings and/or tattoos.
In a unionized workplace, an employer's policy must satisfy the following criteria:
- it must not be inconsistent with the collective agreement;
- it must not be unreasonable;
- it must be clear and unequivocal;
- it must be brought to the attention of the employee affected before the employer can act on it;
- the employee must have been notified that a breach of the policy could result in termination; and
- the employer must consistently enforce the policy (KVP Co. Ltd., (1965) 16 L.A.C. 73).
More often than not, the determining factor in assessing whether a workplace policy that regulates the appearance of employees is valid is whether the employer can establish that the policy is reasonable. The employer must be able to satisfy an arbitrator that there is a justifiable business reason for the policy. For example, a restaurant that has a policy requiring hair be tied back and beards be kept to a particular length will likely be considered justified, and thus found to be reasonable, on the basis of health and safety concerns. The same policy would likely be unreasonable if applied in an office setting.
In a non-unionized workplace, these restrictions do not apply. An employer does not have to prove the "reasonableness" of their policies. They do, however, need to consider whether their policies are compliant with applicable legislation.
Both unionized and non-unionized employers must ensure that workplace appearance policies are in compliance with applicable human rights legislation.
A workplace policy that imposes restrictions on an employee's appearance in the workplace may be discriminatory if it creates a distinction on the basis of a ground that is protected by human rights legislation. For example, a dress code that prohibits women from wearing leggings to work is, on its face, discriminatory on the basis of sex. However, a policy that requires all employees to dress professionally in the workplace is not, on its face, discriminatory.
Furthermore, a policy may not appear to be discriminatory but may nonetheless result in adverse discrimination. For example, if a policy prohibits visible tattoos and an employee has a visible tattoo that is part, or symbolic, of the employee's culture and/or religious belief. In such circumstances, an employer may be required to accommodate the employee. Whether accommodation is required, and what might constitute reasonable accommodation, is always assessed on an individual basis.
Freedom of Expression
Another factor for employers to consider is whether the workplace appearance policy is an infringement on the employee's right to freedom of expression, which is protected by section 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"). If a policy interferes with an employee's right to freedom of expression, it may still be justifiable if the underlying objective of the policy is serious and valid and if the interference with the employee's right to freedom of expression is found to be proportional to the objective.
Interference with the right to freedom of expression is only a relevant factor considered for public sector employers. It is not a factor for consideration for private employers.
What This Means For Employers
In a non-unionized workplace, there are few restrictions to an employer's ability to impose a workplace policy that regulates the appearance of employees in the workplace. An employer may have such a policy so long as the policy does not discriminate against employees on the basis of a ground that is protected by human rights legislation.
In a unionized workplace, an employer must be able to establish that a policy which regulates the appearance of employees is "reasonable". What is reasonable is an assessment that is made on the facts of each circumstance.
An additional factor to be considered for public sector employers is whether such a policy interferes with an employee's right to freedom of expression.
Introducing and implementing workplace appearance policies can raise legal issues. Employers should consult with legal counsel to ensure that their policy is in compliance with the law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.