Can An Employer Prohibit Visible Tattoos And Piercings In The Workplace?

The answer is no, according to a recent labour arbitration, Ottawa Hospital v CUPE Local 4000 (14 January 2013). The hospital introduced a dress code for unionised employees that went into considerable detail: no mini-skirts, sweat suits, bare feet, flip-flops, perfume, artificial nails in clinical settings and -- contentiously -- no 'visible, excessive body piercings' or 'large tattoos' uncovered during working hours. Nine employees objected to the policy, many of them testifying that their tattoos and/or (more likely just 'and'?) piercings were a 'significant part of their identity and mode of expression'. Others said the rules were difficult to enforce, and in fact enforced inconsistently. The hospital justified the code ostensibly on the grounds that 'excessive' tattoos and piercings were, in essence, freaking out patients -- especially older ones. The union brought a grievance on behalf of the employees.

The arbitrator assessed the dress code against the long-established standard of reasonableness set out in Re KVP Co Ltd and Lumber and Sawmill Workers Union, Local 24537 (1965) 16 LAC 73. He rejected the hospital's argument that the KVP standard should be revisited to reflect the priority of the needs of patients over those of employees. The arbitrator disagreed that KVP prevented the hospital from devising a policy that was reasonable, clear and consistently enforced. It could certainly balance patient needs against employees' individual rights. He also pointed to a case from the early 1970s involving sideburns on police officers (controversial then, no big deal now), observing that the negative stereotypes once associated with both tattoos and piercings outside the earlobe have probably diminished too. There was in any event no evidence to connect any remaining negative impressions of modern body modification with actual healthcare outcomes. Although the grievance was not predicated on a human rights violation, the arbitrator thought there were echoes: the hospital wouldn't accede to a patient's negative stereotypes about an employee's racial or ethnic identity, so why should it cave in to (perceived) views about workers whose bodily adornment merely reflects 'the diversity that anyone would expect in a big-city hospital'? In the end, the hospital appeared to have 'attempted to fix a problem that does not exist'. The policy was declared void and unenforceable.

http://www.canlii.org/en/on/onla/doc/2013/2013canlii643/2013canlii643.html

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