As piercings and body art become increasingly mainstream, employers grapple with the issue of what can be on display and what they can ask their employees to cover up.
Generally speaking, employers are allowed to institute dress codes and grooming standards as long as they don’t contravene an employee’s religious or cultural beliefs, like insisting a Sikh man trim his beard.
Tattoos or piercings are not protected by human-rights codes, unless they are similarly significant in nature. However, that doesn’t mean you can be discriminated against for them either.
“Tattoos are no longer confined to sailors, stevedores, and strippers,” said arbitrator Lorne Slotnick in a 2013 decision overturning The Ottawa Hospital’s proposed dress code that imposed strict regulations on tattoos.
The controversial policy said large, visible tattoos must be covered during shifts, but the union complained that the code unjustifiably constrained employees’ ability to express themselves in their appearance.
The arbitrator agreed, saying tattoos and piercings are now so ubiquitous as to be unremarkable.
“As sideburns were controversial in 1972, so tattoos and piercings are now,” he wrote.
Slotnick deemed the policy an “unreasonable infringement on employees’ rights to express themselves in their appearance,” and added: “while tattoos and piercings are not protected under human rights laws, the evidence in this case was clear that many of the employees regard those aspects of their appearance as an important part of their identity.”
In many such cases, labour arbitrators and even the Supreme Court of Canada have used the “KVP test,” named for a 1964 dispute gauging whether new rules introduced by an employer without union consent are valid. The KVP test considers six points about such policies:
- They must not be inconsistent with the collective agreement.
- They must not be unreasonable.
- They must be clear and unequivocal.
- They must be brought to the attention of the employee affected before the company can act on it.
- The employee concerned must have been notified that a breach of the rule could result in his discharge (if the rule is used as a basis for discharge).
- They have been consistently enforced since their introduction.
As with many legal questions, the “reasonableness” is the core question in the KVP test, and many employer policies are struck down for failing it.
In a non-union workplace, the validity of any dress code or body art policy would be weighed against the provincial or territorial human rights code. Employees would have to prove such policies amount to discrimination against their gender, race, religion, ancestry or other protected grounds.
In a 2009 ruling, a Quebec daycare’s ban on visible tattoos was overturned as a judge found such a ban “rests on prejudices,” and that tattooing can’t be associated with delinquency or other negative stereotypes.
However, that judge also noted there must be limits: an employer could require inappropriate body art, depicting sexual activity or violence for example, to be covered.
If you feel your body art has provoked discrimination in the workplace, contact your union (if applicable) and consult your governing human-rights code. Your art may not be protected by law, but you could still have grounds to fight back.